01994959
12-22-2001
Curtis Mitchell, Jr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Curtis Mitchell, Jr. v. Department of Veterans Affairs
01994959
December 22, 2001
.
Curtis Mitchell, Jr.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01994959
Agency No. 93-2856
Hearing No. 250-94-8182X
DECISION
On June 3, 1999, complainant timely initiated an appeal from the agency's
final decision dated May 5, 1999, concerning his equal employment
opportunity (EEO) 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 alleges he was discriminated against
on the basis of his race (African-American) when he was denied numerous
promotional opportunities to positions outside of the Environmental
Management Service (EMS). For the following reasons, the Commission
REVERSES the agency's final decision.
ISSUES PRESENTED
The issues presented in this appeal are whether complainant (a) timely
contacted an EEO counselor and, if so, (b) was subjected to discriminatory
animus on the basis of his race when he applied for numerous positions.
BACKGROUND
The record evidence reveals that during the relevant time, complainant
was employed as a WG-2 Housekeeping Aid in EMS at the North Little
Rock, Arkansas, facility known as Fort Root Veterans Affairs Hospital.
Complainant filed a formal EEO complaint on July 7, 1993, alleging
that the agency had discriminated against him as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and was informed of his right to request a
hearing before an EEOC Administrative Judge (AJ) or alternatively, to
receive a final decision by the agency. Complainant requested a hearing
before an AJ. Since the issues raised by complainant were substantially
identical to complaints filed by five of his co-workers, the AJ, sua
sponte, consolidated the six separate complaints for hearing.<1>
By letter dated October 21, 1994, the agency requested that the AJ remand
the complaint back to the agency for a decision concerning timeliness.
The AJ decided not to remand the cases and assumed jurisdiction over the
complaints after finding that they were properly before her. Following the
hearing, the AJ issued a decision finding that complainant had established
that he had been subjected to intentional race discrimination.<2>
The AJ concluded that complainant established a prima facie case of
disparate treatment based on race. The record reflects that since
1983 complainant applied for numerous positions in the Engineering
Service and, although complainant was deemed qualified for several
of these positions, he was not selected, and in each instance the
selectee was White. In particular, the record evidence showed that
complainant has been a licensed journeyman plumber since 1979, and that
he has worked independently as a plumber since obtaining his license.
It is also not disputed that complainant has performed plumbing work for
management employees at the agency. In point of fact, the agency's EEO
manager testified that complainant had performed plumbing work for her.
The record evidence shows that although complainant applied for positions
as a plumber he was never selected.
In fact, complainant listed eight positions that he had applied for on
his Official Personnel File (OPF) data sheet. However, at the hearing
he provided evidence for only four of the non-selections. The AJ
determined that complainant failed to establish a prima facie case of
race discrimination for one of the positions because he did not show
that he was qualified for the position, but found that complainant did
establish a prima facie case of race discrimination for the following
three positions: Pipe Fitter, WG-10 in June 1987 and May 1990; and
Plumbing Worker, WG-5/6/7.
The AJ also concluded that the agency failed to articulate legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that the selecting official (SO) responsible for all of the hiring in the
Engineering Service since 1980 was never asked to articulate reasons for
complainant's non-selections. In point of fact, the record reveals that
SO did not recall the selections at issue. The AJ noted that the agency
proffered the testimony of the general foreman of the Maintenance and
Operations section in the Engineering Service. However, he was never
asked if he had interviewed complainant for any of the positions nor
was he asked to articulate a reason for not recommending complainant
for any of the positions at issue. The AJ noted that the agency did
not explain why complainant, although qualified for several positions,
was consistently rated lower than the selectees even when a review of the
record indicated that he was more qualified. Concluding that the agency
was silent in the face of complainant's prima facie showing, and that the
presumption of discrimination stood unrebutted, the AJ determined that
the agency had discriminated against complainant on the basis of his race.
The agency's FAD dated May 5, 1999, rejected the AJ's decision.
In particular, the agency determined that the AJ's findings were
premature because the complainant should have been remanded back to
the agency for an acceptability determination concerning the issue
of timeliness. The Commission, in Mitchell v. Department of Veterans
Affairs, EEOC Appeal No. 01962214 (February 26, 1997), aff'd, EEOC Request
No. 05970626 (December 3, 1998), found the record inadequate to make a
determination as to timeliness. Accordingly, we remanded the complaint
to the agency and ordered the agency to contact complainant and provide
him the opportunity to show that he timely contacted an EEO counselor.
Upon receipt of the additional information from complainant, we also
ordered the agency to either issue a new FAD dismissing the complaint on
the grounds that complainant failed to timely contact an EEO counselor; or
to issue a new FAD accepting, rejecting, or modifying the AJ's findings.
After collecting additional information from complainant, the agency
dismissed the instant non-selections for untimely EEO counselor contact.
It is from this decision that complainant now appeals.<3>
ANALYSIS AND FINDINGS
Procedural Analysis and Findings
The AJ denied the agency's motion to remand the complaint for a
determination of whether complainant had timely contacted an EEO counselor
on the basis that complainants had undertaken substantial expense in
preparation for the hearing and retained an expert and paid his fees,
including his travel expenses. The AJ also noted that the administrative
process proceeded for years without the agency dismissing the complaint
or otherwise raising timeliness issues. The Commission notes, however,
that it is well settled that a federal agency can raise issues of
timeliness at any time prior to a finding of discrimination by an AJ or
the agency itself. See e.g. Hill v. General Services Administration,
EEOC Request No. 05890383 (September 12, 1989). In addition, we note
that the motion to remand was made at a point in time when there had
been no express waiver of the time limits by the agency, no final agency
decision finding discrimination and no recommended decision of an AJ
finding discrimination. See Mitchell v. Department of Veterans Affairs,
EEOC Request No. 05970626 (December 3, 1998).
Nonetheless, the Commission further notes that dismissal of a complaint
based on untimeliness is not proper where complainant has alleged a
timely continuing violation. Specifically, EEOC Regulation 29 C.F.R. �
1614.105(a)(1) requires that complaints of discrimination should be
brought to the attention of the EEO counselor with forty-five (45) days
of the date of the matter alleged to be discriminatory or, in the case
of a personnel action, within 45 days of the action. In determining the
timeliness of an EEO complaint under Title VII, the critical question is
whether any present violation exists. Delaware State College v. Ricks,
449 U.S. 250, 257 (1980).
The Commission has held that a complainant may not simply allege a
continuing violation, but must present facts that are sufficient to show
that he or she was subjected to an alleged ongoing unlawful employment
practice which continued into the 45-day period for EEO counselor contact.
Anisman v. Department of the Treasury, EEOC Request No. 05A00283 (April
12, 2001). In other words, while the time requirements for initiating EEO
counseling can be waived as to certain claims within a complaint, to do
so, complainant must show these claims constitute a continuing violation;
that is, a series of related discriminatory acts, having a common nexus
or theme, one of which fell within the time period for contacting an EEO
counselor. See Reid v. Department of Commerce, EEOC Request No. 05970705
(April 22, 1999). Factors that must be considered to determine whether
there is a nexus include: (1) the time interval between the timely and
untimely events; (2) whether the events were of a similar nature; (3)
whether the adverse actions were taken by the same individual or groups
of individuals; or (4) whether the actions were motivated by the same
discriminatory animus.
Complainant, in the instant case, identified numerous positions in
the Engineering Service that he had applied for and was non-selected.
These positions would have taken him out of the housekeeping unit and
placed him in an environment with more growth opportunity. The record
evidence shows that during the entire time frame that complainant applied
for these positions, the agency had the same selecting official in the
Engineering Service. In addition, complainant alleged that when he
contacted an EEO counselor, the alleged practice of treating similarly
situated White employees differently regarding promotions allegedly
remained in effect. In addition, it is undisputed that at least one
of the challenged non-selections occurred within the 45 calendar day
period for EEO counselor contact. Specifically, complainant applied
and was not selected for a GS-5 Firefighter position, advertised under
Vacancy Announcement No. 93-C-26 in February 1993. The record reflects
that after a period of time elapsed complainant decided to check whether
someone had been selected and, upon discovering that a White male had
been selected for the position, complainant timely sought EEO counseling
on April 7, 1993. Thus, we find that complainant has established a nexus
and we conclude that his EEO counselor contact was timely. The Commission
finds, therefore, that complainant has stated a timely raised continuing
violation non-selection claim which should be processed pursuant to 29
C.F.R. � 1614.109 et seq.
When a continuing violation is alleged, the running of the period for
initiating a Title VII complaint starts from the most recent occurrence of
the alleged discrimination and not from the first occurrence. Conference
Report to the Equal Opportunity Act of 1992, Pub.L.No. 92-261, 86
Stat. 103 (1972) (which amended Title VII, to, among other things, provide
a cause of action for the victims of unlawful employment discrimination
by federal agencies), discussed in Milton v. Weinberger, 645 F.2d 1070,
1075 n. 14 (D.C. Cir. 1981); see also Havens Realty Corp. v. Coleman,
455 U.S. 363, 381 (1982) (when a complainant challenges not just one
incident of conduct violative of the Fair Housing Act, but an unlawful
practice that continues into the limitations period, the complainant
is timely when it is filed within 180 days of the last occurrence of
that practice). Where a challenged violation is a continuing one,
any concern about the staleness of a claim disappears. Id. at 380.
Recent decisions by United States Courts of Appeals have held that a
complainant may seek a remedy for continuing employment discrimination
regardless of whether complainant had prior notice or a reasonable
suspicion that his or her rights were being violated. Morgan v. National
Railroad Passenger Corp. d/b/a Amtrak, 232 F.3d 1008, 1014-1018 (9th
Cir. 2000). Therefore, because complainant, in the instant complaint,
contacted an EEO counselor within 45 calendar days of an occurrence of the
allegedly on-going discriminatory employment practice, his EEO counselor
contact was timely as to that allegedly unlawful employment practice,
whether or not he suspected discrimination more than 45 calendar days
before his EEO counselor contact.
Based on the foregoing, we find that even if the AJ had remanded
the complaint to the agency, complainant's complaint could not have
been properly dismissed for untimely EEO counselor contact. Thus, the
complaint was properly before the AJ. We will now proceed to an analysis
of whether the record contains substantial evidence to support the AJ's
finding of discrimination.
Merits Analysis and Findings
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
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).
In the instant case, it is not disputed that complainant applied for
several Pipe Fitter and Plumber positions. Although complainant was
deemed qualified for these positions by the agency, he was not selected.
The record reflects that White co-workers were selected for these
positions. Consequently, we find that complainant has established a
prima facie case of race discrimination.
The burden of production now shifts to the agency to rebut the
presumption by articulating a legitimate, nondiscriminatory reason for the
non-selections. While the agency's burden of production is not onerous,
it must nevertheless provide a specific, clear, and individualized
explanation for the treatment accorded complainant. Complainant is
entitled to some rationale for his non-selections that provides him with
an opportunity to attempt to satisfy his ultimate burden of proving that
the agency's explanation was a pretext for discriminatory animus.
In the case before us, we find that the agency did not meet this burden.
In an effort to articulate its reasons, the agency presented testimony
from the selecting official (SO) for all positions in the engineering
service since 1980. SO's testimony however, does not contain any reasons
for complainant's non-selections. In point of fact, SO testified that he
did not recall any of the non-selections at issue. The record evidence
also shows that the agency proffered the testimony of the general foreman
(SO2) in the engineering service. However, he too, failed to articulate
a legitimate, nondiscriminatory reason for complainant's non-selections.
In addition, the agency did not present any interview notes or other
written documentation that would have provided some evidence to support
their selections. Thus, the ability to conduct a comparative analysis was
effectively thwarted. The Commission notes that the agency conceded that
the necessary information could have been obtained through other means.
We find that the evidence presented by the agency is not sufficient
to provide that specific, clear, and individualized explanation that
is required by Burdine to explain why complainant was not selected
for the positions for which he was qualified. Instead, the agency's
articulation consisted of conclusory statements that complainant
was not the best qualified and therefore not selected. Under these
circumstances, we conclude that the agency did not articulate a
legitimate, nondiscriminatory reason for not selecting complainant.
Thus, we conclude that in light of the agency's failure to meet its
burden of production, that the agency discriminated against complainant
on the basis of his race.
With regard to the question of the appropriate remedy, 29 C.F.R. �
1614.501(c)(1) states that �back pay liability under Title VII . . . is
limited to two years prior to the date the discrimination complaint was
filed.� The record evidence shows that complainant filed the instant
complaint on July 7, 1993. Accordingly, we find that complainant is
entitled to back pay commencing on July 7, 1991.
In addressing the question of compensatory damages, the AJ concluded
that complainant was entitled to an award of compensatory damages.
The Commission notes that in Landgraf v. USI Film Products, 511 U.S. 244
(1994), the Supreme Court held that the compensatory provision of the
Civil Rights Act of 1991 (the Act) may not be retroactively applied to
conduct that occurred before the November 21, 1991, effective date of
the Act. The record shows that the most recent non-selection that was
found to be discriminatory occurred in February 1993, which is subsequent
to the effective date of the Act. Consequently, we agree with the AJ's
conclusion that complainant is entitled to compensatory damages with
regard to this non-selection.
CONCLUSION
Based on the foregoing, the Commission finds that the AJ's findings of
fact are supported by substantial evidence. The Commission also finds
that the AJ's decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. The Commission further
finds that complainant timely contacted an EEO counselor. We discern
no basis to disturb the AJ's decision. Therefore, after a careful
review of the record, including complainant's arguments on appeal,
the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission REVERSES the agency's final
decision which rejected the AJ's finding of discrimination. The agency
is ordered to take remedial actions in accordance with this decision
and the ORDER below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall offer to promote complainant to the position of
WG-10 Pipe Fitter in the Engineering Service, or in a position that has
substantially the same or similar duties and level of responsibility. The
agency shall award seniority and other employee benefits due complainant
retroactive to July 1991, pursuant to 29 C.F.R. � 1614.501(c)(1).
Complainant shall be given thirty (30) calendar days from receipt of this
offer within which to accept or decline the offer. Failure to accept
the offer within the aforementioned time period will be considered a
rejection of the offer, unless complainant can show that circumstances
beyond his control prevented a response within the time limit.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant retroactive
to July 1991, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. The complainant
shall cooperate in the agency's efforts to compute the amount of back pay
and benefits due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The issue of compensatory damages is REMANDED to the Hearings Unit of
the Memphis District Office. The agency is directed to submit a copy of
the complaint file to the EEOC Hearings Unit within fifteen (15) calendar
days of the date this decision becomes final. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge must be assigned in an expeditious
manner to further process the issue of compensatory damages in accordance
with the regulations.
The agency is directed to provide training to all of its management
and supervisory employees at the Fort Root Veterans Affairs Hospital to
sensitize them to the issue of discrimination in the workplace, and to
apprise them of their responsibilities as federal management officials
to adhere to EEO laws and to provide equal opportunities to all employees
regardless of race.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Fort Root Veterans Affairs Hospital
facility in North Little Rock, Arkansas copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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 (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 22, 2001
__________________
Date
1 See Horton v. Department of Veterans Affairs, EEOC Appeal No. 01961514
(February 26, 1997); Rhodes v. Department of Veterans Affairs,
EEOC Appeal No. 01962212 (February 26, 1997); Wilson v. Department of
Veterans Affairs, EEOC Appeal No. 01962213 (February 26, 1997); Mitchell
v. Department of Veterans Affairs, EEOC Appeal No. 01962214 (February 26,
1997); Estus v. Department of Veterans Affairs, EEOC Appeal No. 01962215
(February 26, 1997); and, Abernathy v. Department of Veterans Affairs,
EEOC Appeal No. 01962216 (February 26, 1997).
2 The AJ also found that complainant had failed to establish a prima
facie case of disparate impact discrimination based on race.
3 The agency found that three non-selections were timely challenged and
issued a FAD on the merits finding that complainant failed to establish
a prima facie case of race discrimination because no one was selected
for the first position, he did not apply for the second, and a member of
his protected class was hired for the third. See Mitchell v. Department
of Veterans Affairs, EEOC Appeal Nos. 01A01951, 01A03562 ( _______, 2001).