01982734
12-17-1999
Henry C. Ekweani, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Henry C. Ekweani, )
Complainant, )
) Appeal No. 01982734
v. ) Agency No. 921118
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black) and national origin (Nigerian) in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Complainant alleges he was discriminated against when he was
not selected for three positions. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the Commission
affirms the FAD as clarified herein.
The record reveals that, in 1991, complainant learned through a minority
job fair that the agency was recruiting. He interviewed for two positions
in November 1991 and one position in February 1992. Believing the agency
discriminated against him by not selecting him for any of the three
positions, complainant sought EEO counseling and filed a complaint on
November 16, 1992. At the conclusion of the investigation, complainant
requested that the agency issue a final decision. Complainant now appeals
from the agency's finding of no discrimination. On appeal, complainant
contends that the FAD was fraught with bias and based on unsupported,
conclusory statements. The agency requests that we affirm its FAD.
After a careful review of the record, based on the standards set forth
in McDonnell Douglas Corp.v. Green, 411 U.S. 792 (1973) and Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253-256
(1981), the Commission finds that complainant failed to establish a
prima facie case of discrimination on either alleged basis in connection
with the positions in the �Grain and Feed Division� and the �Policy
Analysis Branch.� In the former, we disagree with the agency and find
that complainant was not similarly situated to the Selectee who was a
reinstatement eligible employee. In the latter, no one was selected
for the position due to a hiring freeze. Concerning the position with
the �Import Policies Program,� complainant failed to establish a prima
facie case of racial discrimination because the Selectee was a member of
his protected class.<2> Complainant did establish a prima facie case of
national origin discrimination. The Selecting Official stated that she
chose the Selectee (born in Ghana) because she deemed him to be the best
qualified for the position based on his experience. Although complainant
asserts that he was far better qualified than the Selectee, his assertion
is not supported by the record. Moreover, we decline to find that
the Selecting Official was motivated by discriminatory animus towards
complainant's national origin in light of the fact that she was under the
mistaken impression that both complainant and the Selectee were Nigerian.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD as
clarified.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 17, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
1 On 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 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at
WWW.EEOC.GOV.
2 The Commission notes that of the five positions filled by
non-reinstatement eligible employees during this time, two of the
positions were filled by Black males, two by White females and one by
a White male.