0120061228
12-04-2006
Joseph C. Morings, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Joseph C. Morings,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200612281
Agency No. 200H-0604-2004103221
DECISION
On December 8, 2005, complainant filed an appeal from the agency's
November 30, 2005 final decision 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
Complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race (Black) and in reprisal for prior protected
activity when:
1. Complainant was not selected on May 20, 2004, for the position of
Health Technician, GS-0640-06, under an Open and Continuous Announcement;
2. Complainant was not selected on June 11, 2004, for the position
of Information Technologist, GS-2210-9 Target 11, Vacancy Announcement
No. 04-52.
3. Complainant was not selected on April 23, 2004, for the
position of Health Technician, GS-0640-06, under an Open and Continuous
Announcement;
By letter dated October 24, 2004, the agency accepted claims (1) and
(2) for investigation. The agency dismissed claim (3) pursuant to 29
C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The agency
found that complainant contacted an EEO Counselor on June 23, 2004,
which is beyond the 45-day time limit for initial EEO contact
The agency issued a final decision, dated November 30, 2005, in which the
agency concluded that complainant failed to prove that he was subjected
to discrimination as alleged in claims (1) and (2). The agency found
that complainant failed to establish a prima facie case of race or
reprisal discrimination. Specifically, the agency found that although
complainant had applied for both positions (Health Technician and
Information Technologist), complainant was not interviewed for either
position. The agency noted that complainant's most recent prior EEO
complaint was filed in 2001.
With respect to claim (1) (Health Technician) the agency found that
the selectee was a preference eligible veteran and a member of the same
protected racial group as complainant. The agency noted that complainant
therefore failed to establish a prima facie case of race discrimination in
that he did not identify any comparative applicant, not in his protected
class, who received preferential treatment. Moreover, the agency found
that the selecting official was not involved in complainant's prior EEO
complaints and was unaware of complainant's prior protected activity,
and accordingly, complainant did not present a prima facie case of
discrimination based on reprisal.
With respect to claim (2) (Information Technologist) the agency
observed that although complainant had applied for the subject position,
complainant's name was, in error, not included in the certificate of
eligible applicants referred to the selection official for consideration.
The agency noted that the Personnel Management Specialist responsible for
omitting complainant's name from the selection certificate did not know
complainant and was not aware of his race or prior EEO activity. The
agency found no connection or causal relationship between complainant's
race or prior EEO activity and the error by which complainant's name
was left off of the certificate. The agency therefore found that no
discrimination occurred as alleged.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
We find no basis to disturb the agency's final decision. Specifically,
we find the record supports the agency's finding that the selecting
officials and the personnel official involved in the selection process for
the positions described in the complaint were unaware of complainant's
prior EEO activity. Furthermore, no evidence suggests any connection
between complainant's race or his prior protected activity and the
agency's selection decisions in either claim (1) or (2). Nor does any
evidence indicate that the agency's error that resulted in complainant's
name being omitted from the certificate of eligible candidates in claim
(2) was motivated by discrimination.
Regarding claim 3, we find that the agency properly dismissed claim 3
for untimely EEO Counselor contact. Complainant failed to contact an
EEO Counselor within the 45-day time limit.
We therefore AFFIRM the agency's final decision.
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
December 4, 2006
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above referenced appeal number.
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0120061228
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061228