0120121706
08-22-2012
Charles Morgan, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Charles Morgan,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121706
Hearing No. 420-2011-00122X
Agency No. 200106192010104046
DECISION
On February 27, 2012, Complainant filed an appeal from the Agency's January 30, 2012, final decision 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an AC Mechanic at the Agency's Central Alabama Healthcare System in Montgomery, Alabama.
On October 20, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), and age (53) when:
1. On February 2, 2008, he learned he was not selected for the position of Maintenance Mechanic Supervisor; and
2. On June 1, 2010, he learned he was not selected for the position of Maintenance Mechanic Supervisor.
The Agency dismissed claim 1 as untimely raised in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2) and accepted claim 2 for investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request on the grounds that Complainant failed to cooperate with the AJ's order to provide certain items required for hearing. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The record in this matter indicates that on March 9, 2010, Complainant, an AC Mechanic with the Agency, applied for the position of Maintenance Mechanic Supervisor, WS-4749-11 pursuant to Vacancy Announcement Number 619-10-INT-0070-JS. The selecting officials reviewed Complainant's knowledge, skills and abilities, (KSA's) submitted pursuant to the application process and determined that he was qualified for the position. Complainant was referred for consideration to the Agency's interview panel. The record further indicates that the interview panel conducted performance based interviews of Complainant and five other candidates for the position and selected the individual with the highest score. The record indicates that the selectee scored a total of 96 points for the entire application process including the interview while Complainant scored a total score of 74. The interview panel found that although Complainant possessed good qualifications in the air conditioning and maintenance field, he was weak in the electrical professional qualifications The also explained that Complainant was not recommended for selection because he lacked experience in design, value engineering, electrical inspections, steam distribution and electrical equipment. In contract, the panel found that the selectee had more relevant experience in steam distribution, emergency generators, value engineering, electrical inspections, electrical equipment, and energy management systems. Additionally, the panel indicated that the selectee had more professional experience.
Complainant alleged that he did not believe that the selectee had the requisite credentials or experience in the areas set forth in the position description. Complainant alleged that his age and race were factors in his non-selection because he had twice applied for the same position and on each occasion management had selected a younger white male for the job.
ANALYSIS AND FINDINGS
Dismissal of Claim 1
As an initial matter, the record indicates that the Agency dismissed claim 1 as untimely in accordance with EEOC Regulation 29 C.F.R. � 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency determined that Complainant first sought EEO Counseling on July 14, 2010, regarding a 2008 non-selection. EEOC Regulation 29 C.F.R. � 1614.105 (a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here Complainant has not alleged that he was unaware of the time limitations for contacting an EEO Counselor in a timely manner, nor has he alleged that he was prevented by circumstances beyond his control from timely contacting an EEO Counselor. In that regard, we find that the Agency's dismissal of claim 1 of the instant complaint was proper.
Claim 2 - Adjudication on the Merits
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").
Here, we agree with the AJ's finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Complainant may establish a prima facie case of discrimination based on race, color, sex and age by demonstrating that (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); and EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination on any alleged basis, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives. The Commission notes that in non-selection cases, pretext may be found where the complainant's qualifications are demonstrably superior to the selectee's. See, e.g., Hickman v. Department of Justice (Drug Enforcement Administration), EEOC Appeal No. 01Aaa797 (December 20, 2001). While Complainant's qualifications are impressive, he has not established that they are 'demonstrably superior" to the selectee's such that Complainant should have been selected over him. Accordingly, we find that Complainant has not established pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final Agency decision finding no discrimination.
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
August 22, 2012
__________________
Date
2
0120121706
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121706