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