William Tsehappat, Appellant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01970164 (E.E.O.C. Jan. 29, 1999)

01970164

01-29-1999

William Tsehappat, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


William Tsehappat v. Department of Labor

01970198

January 29, 1999

William Tsehappat, )

Appellant, )

)

v. ) Appeal No. 01970198

) Agency No. 5-07-050

Alexis M. Herman, ) Hearing No. 280-95-4296X

Secretary, )

Department of Labor, )

Agency. )

)

DECISION

Appellant timely appealed the final decision of the Department of Labor

(agency), concerning his complaint alleging that the agency discriminated

against him in violation of the Age Discrimination in Employment Act of

1967, as amended, 29 U.S.C. 621 et seq. The appeal is accepted by the

Commission in accordance with the provisions of EEOC Order No. 960.001.

Appellant filed a formal complaint alleging that the agency discriminated

against him on the bases of age (61) when he failed to be selected for

the position of Safety and Occupational Health Manager, GS-14, in the

agency's Wichita, Kansas, Area Office, under vacancy announcement KC

94-33, dated October 5, 1994. The agency accepted appellant's complaint,

conducted an investigation and provided appellant with a copy of the

investigative report. Thereafter, all administrative procedures were

met for a hearing before an EEOC administrative judge (AJ). Pursuant

to 29 C.F.R. 1614.109 et seq., the AJ issued a notice informing the

parties that he would issue Findings and Conclusions without a hearing.

Appellant submitted a statement in opposition to the AJ's notice, and

the agency submitted a memorandum in support of a summary disposition.

Finding that there were no genuine issue of material facts involved,

the AJ issued a recommended decision without a hearing finding no age

discrimination on August 18, 1996. The agency subsequently adopted the

AJ's decision in a final agency decision dated August 30, 1996.

At the time this complaint arose, appellant was employed as a Safety and

Occupational Health Specialist, GS-13, with the agency. Appellant applied

for a promotion to a managerial position, GS-14 at the agency's Region

VII duty station in Wichita, Kansas per vacancy announcement KC 94-33.

Appellant was born on April 9, 1933, and was 61 years of age at the time

he applied for promotion. There is no dispute that appellant met the

basic qualification requirements for the managerial position.

In his recommended decision, the AJ found that appellant may be able to

establish a prima facie case of age discrimination because appellant was

qualified for the position in question and the selecting official (SO)

selected a significantly younger candidate. However, the AJ concluded

that appellant failed to present any evidence which would show that

age motivated either the panel which assigned appellant the lowest

rating of the 10 qualified applicants, or the SO who chose the younger

selectee. In either case, the AJ concluded that appellant failed to

rebut the agency's non-discriminatory reasons for his non-selection.

Specifically, the SO explained that he decided to interview the top

three applicants as determined by the interview panel's rating. He did

not interview appellant because appellant was not among the top-three

candidates presented to the SO for selection. Appellant had the lowest

rating of the ten candidates based on his oral responses to questions

involving team building, motivating others, initiative, human regard,

planning and organizing, innovation/creativity, and tolerance for stress.

The SO further stated that he chose the selectee (age 47) for the position

because the selectee held a previous position as Area Director with OSHA.

In addition, the selectee showed in his employment application and during

his interview with the SO that he was the most qualified candidate, in

terms of experience, knowledge and his approach to occupational safety

and health, among the three candidates presented to him.

The AJ acknowledged appellant's pretext arguments but concluded

that without some evidence of age bias by the SO, appellant's

"bald" allegations that the agency pre-selected the selectee for the

position was not sufficient to withstand a motion for summary judgment.

Furthermore, citing applicable authority, the AJ noted that preselection

does not violate the ADEA when it is based on the qualifications of

the pre-selected person and not on age. Based on the foregoing, the

AJ concluded that appellant failed to raise any material facts which

rebutted the agency's assertions that appellant was not chosen for the

position because his low score precluded him from further consideration

for selection. Moreover, apellant failed to show that the SO' other

reasons for hiring the selectee were pretextual.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission

finds that the AJ's recommended decision properly analyzed appellant's

complaint, set forth the relevant facts and properly analyzed the

appropriate regulations, policies, and laws applicable to this case.

In addition, we find that the AJ appropriately decided this case without

a hearing pursuant to 29 C.F.R. �1614.109 et seq. We note that appellant

failed to submit any additional persuasive evidence on appeal in support

of his claim. Therefore, we adopt the A's recommended decision finding

no age discrimination. Accordingly, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the final agency decision

finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

Jan 29, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations