05a00549
01-10-2001
Edward W. Cobbs, Complainant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Edward W. Cobbs v. Environmental Protection Agency
05A00549
January 10, 2001
.
Edward W. Cobbs,
Complainant,
v.
Carol M. Browner,
Administrator,
Environmental Protection Agency,
Agency.
Request No. 05A00549
Appeal No. 01986643
Agency No. 970055R3
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Edward
W. Cobbs v. Environmental Protection Agency, EEOC Appeal No. 01986643
(March 10, 2000).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race/color (black) when he was not selected
for promotion to the temporary position of Environmental Protection
Specialist, GS-13/14 in 1997. Following an investigation the complainant
was notified of his right to a hearing before an EEOC Administrative
Judge. He requested a final agency decision without a hearing.
The final agency decision found no discrimination, and the previous
decision affirmed.
The selecting official considered all the candidates, including the
complainant. He explained that he chose the selectee because he had
the best mix of computer and financial skills to successfully perform in
the position. Absent evidence of discrimination, the Commission will not
second guess such management decisions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259 (1981). The complainant's skills
are not such as to raise the specter of discrimination.
Where the record shows irregular processing of routine administrative
functions, the Commission has held that deviation from standard
procedures, without explanation or justification, are subject to
heightened scrutiny and may be sufficient to demonstrate pretext.
Monroe v. Department of the Navy, EEOC Request No. 05950248 (August
8, 1996). While it was unusual that the candidates were repeatedly
rated prior to one being chosen by the selecting official, the agency
explained its actions: the first set of ratings found only one of nine
candidates highly qualified, which was very unusual, and the subject
matter expert who did the ratings refused to justify them. Accordingly,
another subject matter expert was asked to do a second set of ratings.
The second set of ratings also found only one candidate highly qualified.
This confirmed a problem with the crediting plan. A new crediting plan
was developed, and the second subject matter expert rated the candidates
again. This resulted in five candidates being rated highly qualified.
The complainant was rated highly qualified in the first rating, and
in none of the others. The agency's explanation for repeated ratings
was legitimate and persuasive. The complainant has failed to prove
pretext.<2>
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01986643 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
January 10, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Further, Exhibit 24 of the Investigative Report reflects that during the
two years preceding the contested selection, the selecting official chose
five individuals for GS-13/14 positions. Three were African American,
one was Hispanic, and one was white.