01990539
01-29-2002
Larry K. Davis, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Larry K. Davis v. General Service Administration
01990539
01-29-02
.
Larry K. Davis,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01990539
Agency No. 96-1104
Hearing No. 100-97-7661X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) 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.; the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has established by
preponderant evidence that the agency discriminated against him on the
bases of national origin (Native American), age (DOB: October 30, 1941),
and disability (limited sight in left eye) when he was not selected
under Vacancy Announcement K96-16163 (VA) as a Supervisory Contract
Specialist, GS-14.
BACKGROUND
The record reveals that complainant was a Contract Specialist, GS-13,
at the agency's Federal Systems Integration and Management Contracting
Center in Falls Church, Virginia. He applied for the position of
Supervisory Contract Specialist but was not selected for the position.
Complainant believed that the Selectee had been �groomed� by his Immediate
Supervisor (Supervisor) for the position. Believing he was a victim
of discrimination, complainant filed a formal EEO complaint with the
agency on October 7, 1996, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish prima facie
cases of disability and national origin discrimination. Specifically,
the AJ found that complainant failed to demonstrate that he was a
qualified individual with a disability and that the agency was aware
of his national origin. The AJ concluded that complainant established
a prima facie case of age discrimination because the Selectee, not in
his protected class, was selected for the position at issue. The AJ
further concluded that complainant did not rebut the agency's legitimate,
nondiscriminatory reasons for its action. The AJ found that the agency
did not select complainant because the position required the selling
of services to customers and there were numerous customer complaints
about him. The agency's final decision implemented the AJ's decision.
Complainant appealed.
On appeal, complainant contends that the AJ erred in issuing summary
judgment in favor of the agency.<1> In particular, complainant argues
that the agency's assertion that complainant deals poorly with customers
is a misstatement. Further, complainant believes that the agency has
stonewalled the discovery process and he would like a hearing so he may
face his accusers. In response to the appeal, the agency requests that
we affirm its final decision.
ANALYSIS AND FINDINGS
Summary Judgment
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court does not
sit as a fact finder. Id. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
An AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
On appeal, complainant contends that the agency officials �lied� when they
averred to his alleged inability to get along with clients. The record
clearly indicates that complainant had strained relations with the
Supervisor whom he referred to as the �Queen,� and the Recommending
Official (RO) who referred to complainant as a �Spoiled Jerk.�<2>
Without further evidence, we find that complainant's mere assertion
that the agency officials lied is insufficient to establish a genuine
issue of material fact as to his conduct. Therefore, upon review of
the record, the Commission finds that the AJ correctly determined that
summary judgment was appropriate.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). 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). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Initially, we will assume, for the sake of the case at hand, that
complainant has established his prima facie cases of national origin, age,
and disability discrimination. Upon review, we find that the agency has
met its burden of articulating legitimate, nondiscriminatory reasons
for its action. The RO indicated in his affidavit that he reviewed
the applications and, based on personal knowledge of the candidates,
selected the top three including the Selectee. Complainant was not one
of the three. The RO noted that he needed someone who could sell the
agency's services to its customers and felt that the Selectee could
do so. The RO also referred to the Selectee as being industrious in
getting the job done and as being diplomatic as compared to complainant.
The RO provided the Selecting Official (SO) the list of the top three
candidates and provided an assessment of each. The SO agreed with
the RO's recommendation and selected the Selectee for the Supervisory
Contract Specialist position. Therefore, upon review, we find that the
agency has provided legitimate, nondiscriminatory reasons for its action.
The burden now returns to complainant to demonstrate that the agency's
reason is pretext for discrimination. Complainant argues that the
Selectee was groomed or pre-selected for the position in question.
Upon review of the record, we find that complainant fails to provide any
evidence that the agency pre-selected the Selectee in a discriminatory
manner. Further, complainant failed to demonstrate that the RO made his
recommendation or that the SO made his selection based on complainant's
national origin, age, and/or alleged disability. Accordingly, the
Commission finds that complainant has failed to show that the agency's
action was motivated by a discriminatory animus.
CONCLUSION
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 agency's
final decision adopting the AJ's decision finding no discrimination.
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
___01-29-02_______________
Date
1 The Commission notes that, in his appeal,
complainant requested that an attorney be appointed to represent him in
connection with the case herein. However, the EEOC Regulations do not
provide for the appointment of attorneys by the Commission.
2 Complainant also referred to the Selectee as the �Prince,� since
he was the Supervisor's heir apparent. He indicated in his affidavit
that the Supervisor was aware of the name-calling and was going to
take disciplinary action against him for his actions. See Report of
Investigation(ROI), Complainant's Affidavit.