01A05898
02-26-2002
James C. Mack, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
James C. Mack v. Department of Health and Human Services
01A05898
February 26, 2002
.
James C. Mack,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A05898
Agency No. 97-047-HCF
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning his complaint 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. Complainant alleged in his complaint
that he was discriminated against by the agency on the bases of his race
(Black) and color (black), and in retaliation for his prior EEO activity,
when, on December 3, 1996, and again on January 23, 1997, he was twice
not selected for the Supervisory Accountant, GS-510-14, position.
The agency found in its FAD that complainant had failed to prove that
he had been discriminated against as claimed. This appeal followed.
On appeal, complainant contends that the agency failed to conduct an
impartial and appropriate investigation into his complaint, see 29
C.F.R. � 1614.106(e)(2), and that it failed to develop an impartial
and appropriate factual record upon which to make findings on the
claims raised by the written complaint, see 29 C.F.R. � 1614.108(b),
because the selecting official (SO) for the first nonselection was not
interviewed as part of the investigation.<1> The evidentiary record
bears out this claim, and the agency's reason offered for this omission
is that SO retired from service shortly after making the nonselection.
While our Management Directive for 29 C.F.R. � 1614 provides that
the EEO investigator should interview early in the investigation the
agency official who made the employment decision at issue, see EEOC
Management Directive 110, ch. 6, p.12 (Nov. 9, 1999), we do not believe
that, in the particular circumstances of this case, the investigator's
failure to interview SO resulted in an evidentiary record insufficiently
developed to support the making of findings on the instant complaint.
The evidence that is present in the record pertaining to complainant's
first nonselection includes an affidavit from one of the recommending
officials, who stated that she met with SO prior to the selection
decision being made, and that the selectee was the most qualified of the
three applicants. The record also contains the application materials
from all three applicants for the position, and the individual KSA
(knowledge, skills, and abilities) rating sheets for each applicant.
These KSA ratings were completed by an individual other than SO, and
indicate that complainant was rated the lowest of the three applicants
on KSA criteria. We also note that complainant failed to present any
evidence (beyond that establishing his prima facie case) in support of
his claim that unlawful discrimination played a role in the nonselections
at issue, nor any evidence that the agency's proffered reason for his
nonselection was pretextual, such as evidence showing that he was clearly
more qualified for the position than either selectee.
Therefore, 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 decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
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
February 26, 2002
Date
1 There was a different selecting official for the second nonselection,
and her affidavit discussing her decision not to select complainant
is contained in the investigative file and is part of the evidentiary
record of this case.