01970141
03-19-1999
Nathaniel F. Lissimore Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Nathaniel F. Lissimore v. Department of the Army
01970141
March 19, 1999
Nathaniel F. Lissimore )
Appellant, )
) Appeal No. 01970141
v. )
) Agency No. 95-AR-467-E
) 95-AR-435-E
Louis Caldera, )
Secretary, ) Hearing No. 120-96-5037X
Department of the Army, ) 120-96-5036X
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision
of the Department of the Army (agency) concerning his complaint of
unlawful employment discrimination, in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq., and
the Age Discrimination in Employment Act (ADEA) of 1967, as amended,
29 U.S.C. �621 et seq. The appeal is accepted by the Commission in
accordance with EEOC Order 960.001.
Appellant filed a formal EEO complaint alleging discrimination on the
bases of race (African American) and age (DOB 9-18-43) when: (1) he
was non-selected in December, 1993 for a Telecommunications Specialist
position (vacancy announcement 48-93); and (2) in August, 1994, his
application in the "Applicant Supply File" (ASF) was returned to him
by the Civilian Personnel Office (CPO) and, accordingly, he was not
considered, at that time, for a Telecommunications Specialist position.
Following the agency's investigation, a hearing took place before an
Equal Employment Opportunity Commission (EEOC) administrative judge (AJ).
Thereafter, the AJ issued a recommended decision of no discrimination.
The agency subsequently adopted the AJ's findings and recommendation.
It is from this decision that appellant now appeals.
The record reveals that appellant retired from active service with
the agency on June 30, 1993. Appellant's last duty station was Fort
Ritchie, Maryland. On November 19, 1993, appellant was referred for the
position of Telecommunications Specialist, GS-391-12 (vacancy announcement
48-93) under Direct Hire authority as a best qualified candidate with a
5-point veteran preference. It was the policy of the CPO not to rate or
rank Direct Hires who made the best qualified list. Only competitive
applicants (ie. those seeking promotions) were rated and ranked by a
panel of experts. The complete Register of Applicants included several
pages of separately listed groups of applicants who were eligible
for selection. The Register was forwarded to the selecting officials.
On December 1, 1993, two competitive eligibles, C1 (Caucasian, under 40)
and C2 (Caucasian, under 40) were selected by SO1 (Caucasian, age 54).
These applicants were rated and ranked as Highly Qualified by the panel.
In addition, SO1 testified that he considered all the applicants on
the basis of education, training, experience and personal achievement.
SO1 explained that he selected C1 and C2 because he felt that their
technical training and experience exhibited the highest competence
and ability to deal with Network issues and services. Moreover, SO1
testified that while he found appellant's prior work to be outstanding,
he felt that appellant lacked experience with all functions performed
in the organization which had been created after appellant retired in
June, 1993. C1 and C2 were trained in the systems currently being used
in the new organization.
On December 8, 1993, SO2 (African American, age 43) selected C3
(African American, age 45), a Direct Hire candidate with a 10-point
veteran preference. SO2 testified that he considered all candidates
listed on the Register on the bases of experience, training, education,
and professional achievement. SO2 testified that he selected C3 because
of his extensive experience and training in communications and the ability
to deal with complex problems, issues and Network services. The record
also reveals that OPM regulations require that veteran preference
candidates be chosen in order of their preference and that there were
four 10-point veteran preference candidates listed on the Register who
had to be selected prior to any 5-point veteran preference candidate.
On March 28, 1994, appellant submitted a SF-171 Form and expressed
interest in a Telecommunications Specialist (GS-11/12) position. While no
specific vacancy announcement was indicated, appellant testified that
he was told that he would be considered for all future GS-391-11/12
vacancies.
On or about August 11, 1994, the CPO returned appellant's SF 171 Form
along with a cover letter explaining that there were no current or
anticipated vacancies in the Telecommunications Specialist position and
accordingly, appellant's application from the ASF was being returned
to him. The CPO also explained to appellant that he would have to
reapply for any future vacancies. A personnel official testified that the
combination of a paperwork back log and administrative oversight were the
reasons the CPO held appellant's SF 171 Form for over four months before
it was returned to him in August, 1994. The record reveals that from
the time that appellant submitted his SF 171 form (March, 1994) until
it was returned to him (August 11, 1994) there were no competitively
filled GS-391-11/12 or GS-334-11 vacancies with the agency. The record
also reveals that the August 11, 1994 letter was sent to appellant about
the same time another office within CPO was about to issue a GS-391-11
announcement (announcement 29-94). Personnel officials testified
that they repeatedly told appellant between April and October, 1994,
that it was his responsibility to watch for vacancy announcements and
to separately apply for specific announcements for which he desired
consideration. The record further reveals that in August, 1994, the
CPO purged their entire ASF. All applications were returned to the
various applicants.
On or about August 14, 1994, job announcement 29-94 was published
advertising a GS-391-11 position. Appellant did not apply to
this position. Thereafter, a Computer Specialist position GS-334-11
(announcement 36-94) was published. Personnel had qualified appellant
for this position at the GS-11 level. However, appellant did not apply
to this position either.
Issue No. One
The AJ determined that appellant failed to establish a prima facie case
of discrimination with respect to SO2's selection of C3 because C3 is
a member of the same protected groups as appellant. In addition, C3 is
a 10-point veteran preference candidate and appellant is only a 5-point
veteran preference candidate. Therefore, C3 had priority over appellant.
In addition, there were four 10-point veteran preference candidates
who had priority over appellant and only three positions available.
Accordingly, appellant could not have been selected unless at least two
10-point veteran preference candidates were excluded from consideration.
However, appellant does not assert that any 10-point veteran preference
candidate should have been excluded.
With respect to SO1's selection of C1 and C2, the AJ determined that
appellant established a prima facie case of race and age discrimination
as C1 and C2 were both Caucasian and under 40 years of age.
The AJ also found that the agency articulated a legitimate,
non-discriminatory reason for its employment action. The SF 171 Forms
of C1 and C2 show that they had been performing some of the duties of
the positions at the time they submitted their applications. Both C1
and C2 listed in their applications many of the computer systems being
sought by SO1. Both C1 and C2 were GS-11s at Fort Ritchie working
in the organizational components where the duties of the positions at
issue existed. Moreover, SO1 testified that he believed that C1 and
C2 were the best candidates for the positions. The AJ also noted that
appellant presented no persuasive evidence that the agency's articulated
justification for its employment action was unworthy of credence or
that age and/or race was a determining factor in the selection decision.
Specifically, the AJ found that while appellant provided evidence that he
was qualified for the position, he failed to show that he was conversant
with or had the abilities, skills and knowledge of the specific systems
and programs sought by SO1 and listed in the applications of C1 and C2.
In addition, while appellant asserted that separating Direct Hires from
Competitive Eligibles in the Register was improper, he failed to present
evidence that SO1 did not consider all candidates listed on the Register
before selecting the two best qualified candidates. Accordingly, the
AJ found that appellant failed to prove race or age discrimination.
Issue No. Two
With regard to the return of appellant's SF 171 Form in August, 1994 and
the failure of the agency to consider appellant for any Telecommunications
Specialist positions, the AJ determined that appellant failed to establish
a prima facie case of age and/or race discrimination because he failed to
proffer evidence of similarly situated individuals not in his protected
group who were treated more favorably. Specifically, the AJ noted that
individuals outside appellant's protected classes received the same form
letter that appellant received on or about August 11, 1994 and had their
SF 171 Forms returned to them. In addition, all individuals were told
that in order to be considered for future vacancies, a new application
had to be submitted.
In addition to finding that appellant failed to establish a prima
facie case of age and/or race discrimination, we note that the agency
articulated a legitimate, non-discriminatory basis for its return of the
applications. CPO officials explained that in response to assurances
from the agency that it would secure an exemption to the then hiring
freeze, the CPO posted potential vacancies for which applications would
be accepted and created an applicant supply file. In the summer of 1994,
CPO closed out the supply file and returned all applications because the
agency failed to support its claim that it would secure the exemption.
The record also reveals that the ASF was a source of problems since
employees complained they were not being selected and managers did
not want to use the file. Moreover, nothing in the record supports the
finding that the agency's justification was unworthy of credence or that
the agency was motivated by age and/or race.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981);
Loeb v. Textron Inc., 660 F.2d 1003 (1st Cir. 1979). The Commission
concludes that, in all material respects, the AJ accurately set forth the
facts giving rise to the complaint and the law applicable to the case.
We further find that the AJ correctly determined that appellant failed to
establish discrimination based on age or race. As appellant offered no
additional evidence in support of his claim on appeal, we discern no legal
basis to reverse the agency's finding of no discrimination. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
March 19, 1999
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations