01970985
05-20-1999
Henry F. Towns, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Henry F. Towns, )
Appellant, )
) Appeal No. 01970985
v. ) Agency No. 9500246007
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of sex (male) and reprisal (prior EEO
activity), in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq. Appellant alleges he was discriminated
against when he was denied an opportunity for promotion to a GS-235-13
Supervisory Employee Development Specialist position (Position).
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the reasons that follow, the agency's decision is AFFIRMED.
During the relevant time, appellant was employed as a GS-346-12 Logistics
Management Specialist at the Naval Aviation Depot, North Island, San
Diego, California. Appellant alleges that the Position was filled on
a non-competitive basis because the female selecting official (SO),
the Director of Human Resources, desired a female selectee (SE) for the
Position, and also to prevent appellant from applying in retaliation
for filing a prior EEO complaint against the agency.
The record reveals that as a mandated first step in filling the Position,
SO reviewed the Department of Defense Priority Placement Stopper (PPS)
list and determined that a priority match existed. This candidate,
a male, was offered the Position, but declined. SO next reviewed
potential candidates for non-competitive selection, and determined that
SE had the qualifications she was seeking and was �promotion eligible�
at the GS-13 level. Therefore, SE was offered the Position pursuant to
agency personnel regulations permitting non-competitive selections.
Appellant sought EEO counseling and, subsequently, filed a complaint
on April 26, 1995. At the conclusion of the investigation, appellant
requested that the agency issue a FAD. The agency issued its FAD,
dated September 17, 1996, finding no discrimination. It is from this
decision that appellant now appeals.
The FAD did not determine whether appellant established a prima facie
case of discrimination as alleged, noting that this was irrelevant
because the evidence otherwise overwhelmingly showed that the agency
articulated a legitimate nondiscriminatory reason for its decision,
and that this reason was not shown to be a pretext for discrimination.
After a careful independent and impartial review of the record,
based on McDonnell Douglas v. Green, 411 U.S. 792 (1973) and Hochstadt
v. Worcester 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), the Commission concurs with the agency's
finding of no discrimination.
First, the Commission finds that while appellant may have established a
prima facie case of discrimination, the agency articulated a legitimate
nondiscriminatory reason for its action by stating that SE was selected
because she had the skills and experience sought for the Position,
and because she had outstanding recommendations and a reputation for
excellent work. Second, we also find that appellant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination or reprisal.
Appellant asserts that the reasons proffered by the agency are a mere
pretext for discrimination, arguing that the non-competitive process was
deliberately used so that SO could manipulate the selection in favor of
female candidates, as well as to exclude appellant from consideration in
retaliation for his prior EEO activity. Appellant also asserts that SO
improperly emphasized SE's leadership and management skills, but failed
to take into account SE's �minimal� training knowledge as compared to
his own training experience.
Contrary to appellant's assertions, the record shows that SO followed the
agency's personnel regulations throughout the entire selection process.
There is no evidence to suggest that SO knew the gender of any of the
possible non-competitive candidates when she elected to use this process,
nor is there any evidence to indicate that she used this process to
avoid promoting a male or to avoid selecting appellant due to his prior
EEO activity. After SE was identified as an eligible candidate for the
Position under the personnel regulations for the non-competitive process,
SO selected her because she had the experience required for the Position
in addition to excellent supervisor recommendations with respect to her
leadership abilities, management style, and effective oral presentation
skills, which were all highly desired attributes for the Position. The
evidence of record corroborates SO's assessment of SE's qualifications.
Therefore, although we have carefully considered appellant's assertions,
we nevertheless find that because the evidence shows that the SO adhered
to the agency's personnel regulations in the selection process, and
because there is no evidence to suggest that SE's selection was based on
factors other than her qualifications for the Position, and because the
other evidence adduced by appellant is insufficient to establish pretext,
we conclude that appellant failed to establish that he was a victim of
intentional discrimination, as alleged.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM
the FAD.
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)
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 the 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 the 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 the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (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:
May 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations