01A10032
03-22-2002
Nandlal V. Patel, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Nandlal V. Patel v. Department of Agriculture
01A10032
March 22, 2002
.
Nandlal V. Patel,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A10032
Agency No. 980855
DECISION
Complainant timely initiated an appeal from a 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the bases of race (Asian) and national origin (Indian) when in
June 1998 he was not selected for a promotion to either of two advertised
Processed Products Food Inspector, GS-10, positions.
The record reveals that during the relevant time, complainant was
employed as a Processed Products Food Inspector, GS-9, at the agency's
Inspection Office in Smithfield, Virginia. On November 24, 1997, the
agency announced vacancies for the positions at issue. Complainant was
among the ten qualified applicants who were subsequently referred for
consideration by the Selecting Official (SO), however he not selected
for either position. Selectee number one (S1) had twenty four years of
experience and had been working as a Relief Inspector. Selectee number
two (S2) had seventeen years of experience and was President of the
MidAtlantic Council of Food Inspectors Local (union). In contrast,
complainant had ten years of experience. In making this decision,
SO relied in part of the recommendations of several levels of agency
management.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on July 23, 1998.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of race and national origin discrimination as neither
of the selectees were members of complainant's protected classes.
The agency also concluded, however, that it articulated legitimate,
non-discriminatory reasons for its actions which complainant did not show
were mere pretext for unlawful discrimination. On appeal, complainant
reiterates his contention that his qualifications were clearly superior
to the selectees, and that the agency's stated reasons for its selections
are unworthy of belief. The agency requests that we affirm its FAD.
As complainant has established a prima facie case of race and national
origin discrimination, and the agency has articulated legitimate,
non-discriminatory reasons for its actions, 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.
United States Postal Service Board 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).
In a non-selection case, pretext may be demonstrated by a showing that
complainant's qualifications are observably superior to those of the
selectee(s). Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981);
Williams v. Department of Education, EEOC Request No. 05970561 (August
6, 1998). Here, we find that with respect to S1, complainant has not
shown that his qualifications were clearly superior. The record shows
that S1 scored highest in his job rating, and was considered to have
excellent communication and interpersonal skills. Further, S1 was ranked
first by the Circuit Supervisor (CS), who stated in his recommendation
to the selecting official that SI is �by far the best and most capable
in knowledge, freedom and capabilities.� (Report of Investigation,
Exhibit F12 (a)). We find that complainant failed to establish that
the agency's reasons for selecting S1 were pretextual.
With regard to S2, we find that the record contains significant evidence
which serves to cast doubt on the agency's articulated reasons for his
selection. Specifically, S2 was not recommended for selection by any of
the first or second level supervisors, and due to his position as head
of the union, he was rarely available to perform his assigned duties as
Food Inspector. However, Commission precedent holds that the decisions
of selecting officials should not be second guessed by the reviewing
authority where there is no evidence of unlawful motivation. See Fodale
v. Department of Health and Human Services, EEOC Request No. 05960344
(October 16, 1998). Here, the record indicates that is was S2's union
position which may have played a significant role in his selection for
the position at issue. Several supervisors stated in their affidavits
that the agency has a history of favoring union officials for promotion
selections. Accordingly, we find no persuasive evidence to show that
the selection of S2 was a result of unlawful discrimination based on
complainant's race or national origin.
The Commission finds that complainant has failed to meet his ultimate
burden of showing that the agency's actions were motivated by
discriminatory animus toward his race or national origin. Therefore,
after a careful review of the record, we affirm the FAD.
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
March 22, 2002
__________________
Date