01974824
08-31-1999
Norvell A. Chambers, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Norvell A. Chambers, )
Appellant, )
) Appeal No. 01974824
v. ) Agency No. 95-2185
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black), reprisal (prior EEO activity), and age (59),
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
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Appellant alleges
he was discriminated against when he was not selected for a GS-230-12
Supervisory Employee Relations Specialist position in or around June of
1995. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED
The record reveals that during the relevant time, appellant was employed
as a GS-11 Training and Development Specialist at the agency's Medical
Center in Richmond, Virginia. Appellant alleged that the selectee (White,
45, EEO activity unknown) should not have been selected because he had
previously been unsuccessful in a prior supervisory position in another
agency facility. Appellant also alleged that the Selecting Official
(SO) was biased and ensured the selectee's recommendation by developing
the questions, picking appropriate panel members and having a friend
of his wife act as a technical advisor to the panel. The three panel
members consistently testified that SO's questions were merely suggested
questions, and the panel could, and did, ask additional questions of the
applicants. The panel members also indicated that the technical advisor
left the room at appellant's request during appellant's interview, and
that he played no part in their assessment of the candidates. Finally,
the panel members felt the selection process was fair and unbiased,
and the selectee was scored higher (249 points to 194 points) by all
three panel members. SO stated he selected the selectee based on the
panel's recommendation, and that while he was aware of appellant's prior
EEO activity, such knowledge did not affect his decision to adopt the
panel's recommendation.
Believing he was a victim of discrimination, appellant sought EEO
counseling and subsequently filed a complaint on August 18, 1995. At
the conclusion of the investigation, appellant requested a hearing, but
subsequently withdrew his request and asked that the agency issue a FAD.
The FAD concluded that appellant established prima facie cases of race
and age discrimination, but failed to establish a prima facie case
of retaliation because he presented no evidence that any of the panel
members knew about his prior EEO activity. The FAD also concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its actions, namely, that a panel interviewed, rated and ranked the
selectee higher than appellant, and that SO adopted the recommendation
of the panel. The FAD then concluded that appellant failed to present
evidence that the selection process was tainted by discriminatory or
retaliatory animus, noting that the panel members consistently denied
the selection process was biased.
On appeal, appellant makes similar arguments to those advanced to
the agency. The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981),
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the Commission agrees
with the agency that appellant failed to demonstrate that more likely
than not, discriminatory animus motivated the panel's recommendation of
the selectee for the position at issue.<1> The only evidence of racial
or other animus in the record is based on appellant's unsubstantiated
allegations, and there is no evidence that the establishment of the
selection panel, or the recommendation of the panel, was at all tainted
with discriminatory or retaliatory animus. Therefore, after a careful
review of the record, including appellant's contentions on appeal, the
agency's response, and arguments and evidence not specifically addressed
in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
August 31, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 We note that as SO
had knowledge of appellant's prior EEO activity
and was responsible for establishing the selection
panel and making the final selection decision,
appellant established a prima facie case of
retaliation. However, the record supports the
FAD's conclusion that appellant presented no
evidence that the agency's articulated reason
was a pretext for retaliation.