01A01908
12-21-2001
Clarence Wilson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Clarence Wilson v. Department of Veterans Affairs
01A01908
December 21, 2001
.
Clarence Wilson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A01908
Agency No. 93-2862
Hearing No. 250-94-8183X
DECISION
On June 18, 1999, complainant timely initiated an appeal from a final
agency decision (FAD) dated May 25, 1999, 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 (African
American) when:
(1) in December 1992, he was not selected for the position of Police
Officer, GS-6, Vacancy Announcement No. 92-C-137;
in July 1993, he was not selected for the position of Pharmacy
Technician, GS-3/4, Vacancy Announcement No. 93-C-094-OC;
in July 1993, he was not selected for the position of Pharmacy
Technician, GS-5, Vacancy Announcement No. 93-C-095-OC; and,
in February 1994, he was not selected for the position of Pipe Fitter,
WG-9/10, Vacancy Announcement No. 94-C-019.
For the following reasons, the Commission AFFIRMS the agency's final
decision finding no discrimination.
The record reveals that during the relevant time, complainant was employed
as a Housekeeping Aid, WG-2/5 in the Environment Management Services
(EMS) at the North Little Rock, Arkansas, facility known as Fort Root
Veterans Affairs Hospital. Believing he was a victim of discrimination,
complainant sought EEO counseling on April 7, 1993, and subsequently
filed a formal EEO complaint on July 3, 1993. 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. Complainant requested a hearing which was held
on October 24 and 25, 1994, and July 11 and 12, 1995. At the hearing,
the agency requested that the complaint be remanded for consideration
of timeliness, but the AJ declined and proceeded with a hearing.
Following the hearing, the AJ issued a recommended decision finding
discrimination on September 21, 1995.
On November 13, 1995, the agency issued its FAD rejecting the AJ's
recommended finding of discrimination. Complainant appealed and
we reversed the FAD and ordered the agency to give complainant an
opportunity to show that he initiated timely EEO counselor contact.
We also ordered the agency to issue a new FAD dismissing the complaint
or, in the alternative, to issue a new FAD accepting, rejecting or
modifying the AJ's recommended decision. See Wilson v. Department of
Veterans Affairs, EEOC Appeal No. 01962213 (February 26, 1997), aff'd,
EEOC Request No. 05970625 (December 3, 1998).
On May 5, 1999, after collecting additional information from complainant
regarding timely EEO counselor contact, the agency issued its FAD
dismissing most of complainant's non-selections for untimeliness.<1> The
agency also accepted the instant non-selections for further processing.
These four non-selections include three which were not addressed at the
hearing and one which was addressed at the hearing. With respect to
the one addressed at the hearing, the agency adopted the AJ's finding
of no discrimination. Consequently, on May 25, 1999, the agency issued
its FAD finding no race discrimination. It is from this decision that
complainant now appeals.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of race discrimination for any of the positions listed
above. Complainant makes no new contentions on appeal. The agency
requests that we affirm its FAD.
In cases where the issue is non-selection, complainant may establish a
prima facie case of race discrimination by showing: (1) he is a member
of a protected class; (2) he was qualified for the position; (3) he was
not selected for the position; and (4) he was accorded less favorable
treatment from that given to persons otherwise similarly situated.
Williams v. Department of Education, EEOC Request No. 05970561 (August
6, 1998). Complainant may also set forth evidence of acts from which,
if otherwise unexplained, an inference of discrimination can be drawn.
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
After a careful review of the record, the Commission finds that the agency
was correct in finding that complainant failed to establish a prima
facie case of race discrimination for any of the four non-selections.
Specifically, in regards to the police officer position, complainant
failed to show
that he was minimally qualified. In addition, in regard to the two
pharmacy technician positions, we find that complainant did not meet
the minimum qualifications.
Moreover, complainant failed to show that he was qualified for the pipe
fitter position. Indeed, the record evidence shows that complainant
admitted that he was not qualified and believed his application was �a
shot in the dark.�
Based on the foregoing, we find that complainant did not show that the
agency discriminated against him on the basis of his race. Therefore,
after a careful review of the record, including complainant's contentions,
the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
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
December 21, 2001
__________________
Date
1 Complainant timely appealed the dismissal. See Wilson v. Department
of Veterans Affairs, EEOC Appeal No. 01995055.