0120120254
12-05-2012
Peair Garrett, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Peair Garrett,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120254
Hearing No. 420-2011-00058X
Agency No. ARANAD09OCT04668
DECISION
Complainant appeals to the Commission from the Agency's final decision dated September 9, 2011, finding no discrimination. For the following reasons, we AFFIRM the Agency's final decision.
BACKGROUND
In his complaint, dated November 25, 2009, Complainant alleged discrimination based on race (Black) when on September 29, 2009, he became aware that he had not been selected for the position of Welder, WG-3703-10, under Vacancy Announcement Number SCAH08159370D. After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, the AJ denied Complainant's request because he failed to comply with the AJ's Acknowledgement and Order by not submitting any of the information described therein. Thus, the AJ remanded the case back to the Agency for a final Agency decision. The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. On appeal, Complainant does not dispute the AJ's denial of a hearing.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the nonselection. The record indicates that at the time of the relevant incident, Complainant was a term employee, Welder, WG-3703-10, in the Agency's Vehicle Welding Branch, Tracked Systems Division, Anniston Army Depot, Anniston, Alabama. Complainant claimed that he applied but was not selected for the full-time, permanent position of Welder, WG-3703-10, under Vacancy Announcement Number SCAH08159370D on September 29, 2009. The Agency stated that after a review of resumes, 55 candidates, including Complainant, made the cutoff score of 98 and they were referred for consideration to be selected for the position at issue. Then, the Agency utilized its established selection process of the "Rule of Three,"1 along with computing candidates' scores based on their work experience, interview, and supervisor's questionnaires. Based on this selection process, 24 candidates were ultimately selected for the position at issue and Complainant was not.
Specifically, the Selecting Official stated that Complainant received a total 51 points, i.e., 16 out of a maximum of 25 points for 3 years and 8 months of experience, 11 out of 25 points for the supervisor assessment, and 24 out of 25 points for his interview.2 With regard to his interview, all three interview panel members awarded Complainant 4 points, rather than 5 points, for question number 3, i.e., a question concerning the difference between welding combat vehicle mild steel and armor steel plate. With regard to the supervisor's assessment, despite Complainant's contentions that his supervisor should have awarded him the maximum score of 25 points, the supervisor stated that he awarded Complainant only 11 points because he had numerous performance and conduct deficiencies. Specifically, the supervisor indicated that he observed Complainant doing nothing, sitting down, or being away from his work area (in the break room) during his working hours; he took his time getting started on a job; his welding was not up to standard; he consistently used more hours than allotted working the hulls; he came to work late one to two days a week; and he took a lot of unscheduled leave. The supervisor also stated that Complainant was unprofessional and argumentative with him and his work leaders.
After a review of the record, we find that Complainant failed to show that he was treated less favorably than any similarly situated employee under similar circumstances. Furthermore, Complainant failed to show that his qualifications for the positions were plainly superior to the selectees' qualifications or that the Agency's actions were motivated by discrimination. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant has failed to show that the Agency's action was motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
12/5/12
__________________
Date
1 The Agency stated that the "Rule of Three" ensured that the applicants with the highest scores were selected, rather than applicants being selected because they know someone. The Agency noted that this "Rule of Three" was strictly followed throughout the selection process and the selection was made from the top three names on a certified list of candidates. Complainant does not contest this process.
2 Although Complainant claimed that he had more than 16 years of welding experience, the record indicates and he acknowledged that he told the interview panel that he had 3 years and 8 months of experience. On appeal, Complainant does not dispute this.
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0120120254
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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