01981729
07-19-2001
Andrew L. Phillips, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Andrew L. Phillips v. Department of the Navy
01981729
July 19, 2001
.
Andrew L. Phillips,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01981729
Agency No. 95-00189-004
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the basis of race (Black) when:
(1) he was not selected for the positions of Materials Handler Supervisor
II, WS-6907-11, and Stevedore Foreman, WS-3543-8; and
(2) alleged personnel violations resulted in systematic racial
discrimination and promotional violations occurred
causing racial discrimination by design.
The record reveals that during the relevant time, complainant was
employed as a Material Handler Supervisor, WS-6907-5, at the agency's
Fleet Industrial and Supply Center in Norfolk, Virginia. Believing he
was a victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on August 3, 1995. At the
conclusion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency decision. Complainant requested
that the agency issue a final decision.
The record reflects that the agency selecting official stated that his
selection decision for the Supervisory Material Handler position was based
solely on the superior qualifications of the selectee, who was already
at the WS-9 level, while the other candidates, including complainant,
were only at the WS-5 and WS-6 levels. The Staffing Specialist who
rated complainant ineligible for the Stevedore Foreman position stated
that complainant was not referred to the Selecting Official because he
did not supply sufficient information in his application, or during his
rating procedure, to find him qualified for the position.
On appeal, complainant contends that White candidates are given
preferential treatment and special training to ensure that they get
the promotions they desire. In addition, he contends that the White
candidates were trained to answer specific questions which would come
up on the written and interview parts of the exam for the position in
question. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the Commission agrees with the agency that complainant
established a prima facie case of racial discrimination in regard to the
Material Handlers Position. In reaching this conclusion, we note that
complainant, a Black, was qualified for the position but the selectee
turned was Asian.
The Commission further finds, however, that complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note that the selectee had already demonstrated a
high potential for continued management success based on his previous
assignments within the facility, while complainant had not.
We also note that complainant has failed to establish a prima facie case
of discrimination for the selection of the Stevedore Foreman position.
Complainant failed to establish that he was qualified for the position;
moreover, the selectee was of the same race as the complainant.
Therefore, after a careful review of the record, including complainant's
other contentions on appeal, the agency's response, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
July 19, 2001
Date