01991181
01-16-2002
Elijah L. McDavid, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Elijah L. McDavid v. Department of the Navy
01991181
01-16-02
.
Elijah L. McDavid,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01991181
Agency Nos. 96-62980-002; 97-62980-001
Hearing Nos. 100-97-7332X; 100-97-7547X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning his formal complaints 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. For the reasons that follow, the final agency's
decision is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven by
preponderant evidence that he was discriminated against on the bases of
race (Black) and reprisal (prior Title VII EEO activity) when he was not
selected for the position of Supervisory Military Personnel Specialist
(Head, Casualty Assistance Branch), GS-205-11/12/13,<1> and not detailed
to the position of Director, Casualty Assistance and Retired Activities
Division (CARAD).
BACKGROUND
The evidence of record reflects that in February 1996, the agency had
a vacancy in the position of Supervisory Military Personnel Specialist
(Head, Casualty Assistance Branch). Complainant, employed by the agency
as a Supervisory Military Personnel Management Specialist, GS-205-12,
in the Retired Activities Branch at the time, applied for the position.
The position was opened to competitive service candidates and Veterans
Readjustment Act (VRA) candidates. On February 27, 1996, complainant
learned that he had not been selected for the position in favor of a
VRA candidate (i.e., the selectee). The selectee was brought in at the
GS-11 level with performance potential to the GS-13 level. Suspecting
discrimination, complainant contacted an EEO counselor on March 13, 1996.
When the allegation of discrimination was not resolved informally at
the counseling stage, complainant filed a formal complaint in which he
alleged that race and a prior formal complaint were the reasons that he
was not selected.
A few months after the non-selection at issue herein, the position
of Director, CARAD became vacant as a result of the Director's
reassignment to the Office of the Assistant Secretary of Navy. A new
Director was hired, but was not immediately available. Consequently,
the Assistant Chief of Naval Personnel sought a substitute until the
newly hired Director became available. When the substitute replacement
was redirected to run an evacuation in Saudi Arabia, the agency turned to
the two Branch Heads, one of which included the selectee referenced above,
to act as Director for ninety days. On August 4, 1996, the selectee, now
Head of the Casualty Assistance Branch, was chosen over his counterpart,
complainant's supervisor and Head of the Retirement Activities Branch.
Again suspecting discrimination because he was not chosen for the Acting
Director position, complainant contacted an EEO counselor. The matter
was not resolved informally at the counseling stage, so complainant filed
a formal complaint alleging that race and his two previous complaints
were the reasons that he was not given an opportunity to serve as Acting
Director.
Both complaints were accepted and investigated by the agency. At the
conclusion of the investigations, complainant requested that the issues
contained in both complaints be heard before an EEOC Administrative Judge
(AJ). Consequently, the case was forwarded to the appropriate EEOC
District Office and assigned to an AJ. The AJ, after consolidating the
complaints for further administrative processing, conducting a hearing
on June 17, 1998 and July 21, 1998. At the conclusion of the hearing,
the AJ rendered a finding of no discrimination. The agency's final
decision adopted the AJ's findings. Complainant appealed.
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); Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). 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.
Although the initial inquiry of discrimination usually focuses on whether
the complainant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,
the inquiry shifts from whether the complainant has established a
prima facie case to whether s/he has demonstrated by preponderance of
the evidence that the agency's reasons for its actions merely were a
pretext for discrimination. Id.; see also United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983). Here, we
find that the agency has stated legitimate, nondiscriminatory reasons
for its actions. Regarding the non-selection, the agency stated that
the selectee was more qualified than complainant. Specifically, the
agency stated that the selectee previously held a position for three
years with the Marine Corps similar to the position at issue herein.
The agency noted that by comparison, complainant had only one year of
casualty-related experience. The agency also noted that the selectee
acquired his casualty experience as a section head, while complainant
acquired his as an assistant. Regarding the Acting Director position,
the agency stated that complainant was not considered for the position
because the deciding official followed the customary procedures in seeking
a candidate at the next level of authority to act in the managerial
position which, in this case, was someone serving as a Branch Head.
The agency also cited the need to fill quickly the position, the fact
that a competent and capable person had already been identified for
the position, and the inappropriateness of bypassing the Branch Heads
in favor of subordinate staff members who would then have supervisory
authority over their own supervisors as further reasons for its actions.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reason is merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). Regarding the
non-selection, complainant may demonstrate pretext in a number of
ways, including a showing that his qualifications were observably
superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). In attempting to prove that his qualifications were
observably superior to those of the selectee, complainant argues that he
had more than the one year of casualty-related experience claimed by the
agency because his current job in the Retired Activities Branch allowed
him to earn casualty experience. But as the AJ and the agency noted,
the evidence of record indicates that any casualty experience he acquired
in the Retired Activities Branch was relatively minor when compared
to his overall duties. We note that complainant has not presented
any other evidence of pretext to augment his �observably superior�
qualifications argument. We also note that complainant presented no other
evidence tending to prove that the agency's stated reason regarding his
non-selection was concocted to mask discrimination. Regarding the Acting
Director position, complainant attempts to prove pretext by arguing that
the agency bypassed personnel regulations, which required the acting
position to be filled through competitive procedures. The agency argued
that the regulations to which complainant referred did not apply to this
particular position. Whether the agency followed proper procedures when
filling the Acting Director position is not relevant because information
in the file indicates that the agency had historically construed the
personnel regulations as inapplicable to this type of personnel action.
Complainant presented no further evidence or arguments which convinces
us that the true reasons for the agency's actions are discriminatory.
For the foregoing reasons, the Commission concludes that complainant
failed to establish pretext regarding the agency actions.
CONCLUSION
The Commission finds that the AJ's decision correctly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Therefore, we discern no basis to disturb the AJ's decision.
After a careful review of the record, including complainant's arguments
on appeal, the agency's response thereto, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's adoption of the AJ's decision.
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
_01-16-02_________________
Date
1Complainant competed for the job at the GS-13 level.