Gene E. Thomas, Appellant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionApr 9, 1999
01980820 (E.E.O.C. Apr. 9, 1999)

01980820

04-09-1999

Gene E. Thomas, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Gene E. Thomas, )

Appellant, )

) Appeal No. 01980820

v. ) Agency No. FWS-97-019R2

)

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of race (white), sex (male), and age (61), in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. Appellant alleges he was discriminated against

when he was not selected for position of Equal Employment Specialist,

GS-260-11/12. This appeal is accepted in accordance with EEOC Order

No. 960.001. For the following reasons, the agency's decision is

AFFIRMED.

The record reveals that on November 4, 1996, the agency issued a vacancy

announcement for the above-mentioned position. Appellant applied and

was listed on the certificate for reinstatement eligibles. The Selecting

Official (�SO�) stated that he received seven different merit staffing

certificates and chose to use the GS-11 lateral transfer certificate to

select an applicant. On December 20, 1996, the SO selected the Selectee

(Hispanic, female, age 32) from the lateral transfer certificate.

Believing he was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a formal complaint on March 18,

1997. At the conclusion of the investigation, appellant was informed

of his right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. When appellant

failed to respond within the time period specified in our regulations,

the agency issued a FAD.

In its FAD, the agency concluded that appellant established a prima

facie case of race, sex and age discrimination. The FAD then concluded

that the agency proffered legitimate, nondiscriminatory reasons for its

actions, namely, that the SO chose to select from the lateral transfer

certificate which did not contain appellant's name. Finally, the agency

found that appellant failed to offer credible evidence demonstrating

that the SO reason was a pretext to mask discrimination. On appeal,

appellant makes numerous contentions, while the agency stands on the

record and requests that we affirm its FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411, U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)

(requires a showing that age was a determinative factor, in the sense

that "but for" age, appellant would not have been subject to the adverse

action at issue),

Applying this analysis, the Commission agrees with the agency and finds

that appellant has established prima facie cases of race, sex and age

discrimination. However, as outlined above, the agency has successfully

rebutted that initial inference of discrimination with an articulation

of legitimate, nondiscriminatory reasons for the actions taken.

Specifically, the agency established that the Selectee was chosen using

a certificate that did not include appellant. After a careful review of

the record, the Commission finds that appellant failed to establish, by

a preponderance of the evidence, that the agency's articulated reasons

for its actions in this matter were unbelievable or that its actions

were more likely motivated by race, sex or age discrimination.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the agency's final decision of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

April 9, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations