0120071719
09-19-2007
Donovan G. McKenzie, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Donovan G. McKenzie,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071719
Hearing No. 160-2005-00548
Agency No. 200H06322005100048
DECISION
On February 16, 2007, complainant filed an appeal from the agency's
January 22, 2007, final order 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as an Electrical Equipment Worker, WG-5, at the agency's Engineering
Service, Northport Veterans Administration Medical Center in Northport,
New York. On December 30, 2004, complainant filed an EEO complaint
alleging that he was discriminated against on the basis of reprisal for
prior protected EEO activity under Title VII when (1) he was found to be
not qualified for the position of Bio-Medical Engineering Technician,
GS-802-9, advertised under Vacancy Announcement MPA 04-222; and (2)
he was not selected for the position of Electrical Equipment Worker,
WG-7, advertised under Vacancy Announcement MPA 04-86.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and over the complainant's
objections, issued a decision without a hearing on January 4, 2007.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given
the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). The Commission finds that, even
when viewing the evidence in the light most favorable to complainant,
there exists no genuine issues of material fact that the agency had
legitimate reasons for not referring his application for consideration
for the Bio-medical Engineering Technician position and for not selecting
him for the position of Electrical Equipment Worker. More specifically,
complainant failed to demonstrate that he was minimally qualified for a
GS-9 level position because there was no evidence that he had successfully
performed any duties at the next lower grade level.
Additionally, complainant failed to establish that his qualifications
were far superior to those of the selectee for the position of Electrical
Equipment Worker, WG-7 such that the agency's selection could be viewed
as a pretext to hide discrimination. That is, complainant failed to
refute his supervisor's (S) statement that his work performance was only
"borderline" and that he had not exhibited the ability to troubleshoot
a difficult or complex electronic repair in the past four years.
In addition, complainant did not rebut evidence that the selectee had
received awards for outstanding team work and a nomination for Employee
of the Year along with other accomplishments on the job. There was no
evidence presented that complainant had a similar, if not greater level
of performance.
For these reasons, the Commission concludes that the AJ's decision
reached without holding a hearing was appropriate because there was no
dispute that the agency had legitimate reasons for its hiring decisions
which were not shown to be a pretext for retaliation.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we sustain the AJ's
decision without a hearing finding no discrimination. Accordingly,
the agency's decision to implement the AJ's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___9/19/07_______________
Date
1 In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
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0120071719
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071719