01980994
11-24-1998
Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Charles D. Smith v. Small Business Administration
01980994
November 24, 1998
Charles D. Smith,
Appellant,
v.
Aida Alvarez,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01980994
Agency No. 04-93-381
Hearing No. 340-95-3774X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his allegation that the agency discriminated against him
on the bases of race (African-American), religion (Christianity), sex
(male) and reprisal (prior EEO activity) when: (1) he did not receive
a detail to the agency's legal division; (2) he was not given a career
conditional appointment or made career conditional; (3) the District
Director (DD) used the word "boy" when speaking to him; and (4) he was
not given significant developmental advice from DD and other managers,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The Commission hereby accepts the appeal in
accordance with EEOC Order No. 960.001. For the following reasons,
the FAD is AFFIRMED.
At the time of the alleged discriminatory event, appellant was employed
as an Office Automation Clerk, GS-303-04, at the agency's office in Santa
Ana, California. The investigative record reveals that the detailee
(DE) to the legal division (male, race and religion not specified)
had previously served a brief detail in the position in question.
The selecting official wanted someone who could "hit the ground
running." Appellant had not served in that position. Moreover, other
than appellant's bald assertions, he failed to present evidence that
he was better qualified than DE. During the relevant time frame, none
of appellant's similarly situated comparators were given developmental
advice, or advice concerning how to become a career conditional employee.
Finally, with respect to the use of the word "boy," appellant failed to
present evidence that it was used in the context that he asserted that
it was used.
Believing that he was the victim of discrimination appellant sought EEO
counseling and, thereafter, filed a formal EEO complaint. The agency
accepted the complaint for investigation and complied with all of
our procedural and regulatory prerequisites. Subsequently, appellant
requested a hearing before an EEOC Administrative Judge (AJ), which was
held on March 13, 14, and 15, 1996. At the conclusion of the hearing,
the AJ issued a Recommended Decision (RD) finding no discrimination.
Allegation Number (1)
The AJ concluded that although appellant established a prima facie case
of race and religion discrimination when he was not detailed to the legal
division, he failed to show that the agency's actions were pretextual.
Specifically, the AJ reasoned that appellant failed to show that his
qualifications were plainly superior to those of DE. With respect to
sex discrimination, the AJ concluded that appellant failed to establish
a prima facie case because the DE was also male.
Allegation Numbers (2) and (4)
With respect to appellant's assertions that he was not given a career
conditional appointment and not given significant developmental advice,
the AJ concluded that appellant failed to establish a prima facie case
of discrimination on any basis. Specifically, the AJ reasoned that
appellant failed to present a similarly situated comparator that was
treated more favorably.
Allegation Number (3)
Appellant's assertion that DD referred to him as "boy" did not rise
to the level of a hostile environment claim. First, the AJ concluded
that appellant failed to show that the word was used in an offensive or
derogatory manner. The AJ further reasoned that, assuming the word had
been used as asserted by appellant, the circumstance was not sufficiently
severe or pervasive to support a hostile environment claim.
Finally, with respect to appellant's reprisal claim, the AJ concluded
that appellant failed to establish a prima facie case in any instance.
Appellant either failed to show an adverse action or failed to establish
a causal connection.
Once the AJ issued the RD, the agency adopted it and issued a FAD, dated
October 10, 1997, finding no discrimination. It is from this agency
decision that appellant now appeals. On appeal, appellant asserts,
among other things, that he was not treated fairly by the AJ.
After careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's RD sets forth the relevant facts, and properly analyzes
the appropriate regulations, policies and laws. The Commission discerns
no basis to disturb the AJ's finding. Moreover, there is no evidence in
the record to support appellant's contentions on appeal. Accordingly,
the FAD is AFFIRMED.
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. 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:
Nov 24, 1998
______________ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations