0120070445
01-26-2009
Vincent McGuire, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Vincent McGuire,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120070445
Agency No. ARPINEB05SEP1104
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 15, 2006, final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant alleged that the agency discriminated against
him on the bases of race (African-American), sex (male), age (49), and
reprisal for prior protected EEO activity when he was not selected for
a WG-8 Munitions Assembly Service Repairer position.
The agency indicated that assuming arguendo that complainant established
a prima facie case of discrimination as to all bases, the agency
had articulated legitimate nondiscriminatory reasons for its actions.
The agency explained that two candidates were selected for the position
and complainant was not selected because he was not one of the top
two ranked candidates. Complainant was ranked number five or six.
The agency indicated that complainant's overall score was lower than the
selectees because he only received one point in the "Working Relations
and Communications" category. The agency maintained that complainant
received this score because three former supervisors indicated that he
had problems communicating with other individuals and cited instances
where he did not get along or had caused disruption amongst employees.
The agency found that complainant failed to provide any evidence that the
agency's reasons were pretext designed to conceal discriminatory animus.
On appeal, complainant contends that had the agency used the standard
matrix and not added additional categories for attendance, education and
protective equipment, he would have been ranked higher. He maintains
that the matrix developed by management allowed them to choose who they
wanted.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
The Commission agrees that complainant has not shown that the agency's
reasons were pretext for discrimination. He has not shown that the
disparities in qualifications between him and the selectees are "of
such weight and significance that no reasonable person, in the exercise
of impartial judgment, could have chosen the [selectee] over [him] for
the job in question." Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88
Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154
(Jan. 22, 2007). Further, with respect to complainant's contentions on
appeal, we find that other than complainant's own conclusory assertions
regarding the matrix he has not provided any evidence that he was treated
differently than other applicants. Accordingly, the preponderance of
the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 26, 2009
__________________
Date
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0120070445
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070445