0120080185
04-16-2009
Evangleses Moore, Jr., Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Evangleses Moore, Jr.,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120080185
Agency No. EEODFS-06-0921-F
Hearing No. 451-2007-00135X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 31, 2007, final order 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. Complainant alleged that the
agency discriminated against him on the bases of race (Black) and sex
(male) when:
1. On or around August 2, 2006, he was not selected for the position
of Correspondence Exam Technician GS-5/6/7;
2. On or around August 18, 2006, he was not selected for the position
of Correspondence Exam Technician, GS-7; and
3. In August 2006, he was issued a performance appraisal rating with
an overall rating of "4.2" Exceeds Fully Successful, for the period July
1, 2005 through June 30, 2006.
Following an investigation by the agency, complainant, an Examination
Clerk, GS-4 requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing finding that complainant had
failed to demonstrate that he was discriminated against. Specifically,
the AJ found that the agency articulated legitimate nondiscriminatory
reasons for its actions, namely, that with respect to the vacancy
in issue #1, complainant, while making the Best Qualified (BQ) list,
was not selected because he did not do well during the interview and
because he lacked the technical experience that the selectees possessed.
With respect to his performance during the interview, it was reported
that he did not make eye contact, offered brief responses and sometimes
did not answer the questions being asked. With respect to the position in
issue #2, the agency explained that the BQ had to be amended several times
and it was not until its third amendment that complainant made the list.
There were originally 13 positions available. The selecting official for
this announcement indicated that she chose the first 13 candidates off
of the BQ list, and at that time complainant's name was not on the list.
She then got approval to select two more people, this time complainant's
name was included on the BQ list, but she chose two seasonal employees
over complainant because she wanted the seasonal employees to become
permanent employees of the agency.1
With respect to issue #3, the agency explained that complainant received
the rating of "4.2" Exceeds Fully Successful instead of a "5" Outstanding
because he had been counseled regarding several work deficiencies
during the rating period.2 The AJ found that with respect to all issues
complainant failed to demonstrate that the agency's articulated reasons
were pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
We find that even if complainant established a prima facie case as
to all bases, we agree that the agency has articulated legitimate
nondiscriminatory reasons for its actions, namely, that with respect to
issue #1, complainant failed to do well during the interview and did not
have the technical experience necessary for the position and therefore
was not selected. With respect to issue #2, the first 13 candidates
were selected from the BQ list and then two seasonal workers were also
selected. With respect to this claim, there was no evidence presented
which indicates that complainant's race or sex were considered because
his race and sex were unknown to the selecting official at the time
of the selections. Regarding, issue #3, the agency indicated that
complainant had been counseled regarding several performance issues
during the rating period and therefore received the correct rating.
Finally, the Commission notes that complainant has argued that he
was better qualified than the selectees of both positions, we find
that complainant has not shown that the disparities in qualifications
between him and the selectees are "of such weight and significance
that no reasonable person, in the exercise of impartial judgment,
could have chosen the [selectee] over [him] for the job in question."
Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P
42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007).
Therefore, the Commission agrees that complainant failed to demonstrate
that the agency's reasons were pretext for prohibited discrimination.
Accordingly, the Administrative Judge's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence
does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
04/16/09
__________________
Date
1 Complainant was listed as number 15 on the BQ list and the seasonal
workers (two females, race unknown) were ranked as 17 and 19. At the
time of the selection, the selecting official maintains that she was
unaware of complainant's race and sex.
2 Complainant was counseled regarding a variety of matters: the progress
of his work, as he was regularly behind; he needed assistance from other
Clerks since he was the only one on the team; he left a co-worker's
computer locked; he failed to set priorities; he did not always work
efficiently; he did not volunteer to assist others or take the initiative
to acquire additional assignments when his own work was done; and he
misused a government computer.
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0120080185
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013