01a45262
11-04-2004
Willie H. Gray, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Willie H. Gray v. Department of Veterans Affairs
01A45262
November 4, 2004
.
Willie H. Gray,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A45262
Agency No. 200L-0598-2003101935
Hearing No. 250-2004-00176X
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. , Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
The record reveals that during the relevant time, complainant was employed
as a Nursing Assistant, GS-621-4, at the agency's Central Arkansas
Veterans Healthcare system in Little Rock, Arkansas. Complainant sought
EEO counseling and subsequently filed a formal complaint on May 1,
2003, alleging that he was discriminated against on the bases of race
(African-American), disability (mental), age (D.O.B. 6/5/47), and in
reprisal for prior EEO activity when:
on February 14, 2003, he was not selected for the position of Housekeeping
Aid Supervisor (WS-3566-1, MP 03-004).
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. On June 3, 2004,
the AJ issued a Dismissal Order wherein she cancelled the hearing based
on complainant's failure to make himself available for the prehearing
conference and failure to file the required submissions contained in
the Acknowledgment and Scheduling Order. The AJ remanded the instant
case to the agency for issuance of final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of disability and reprisal discrimination.<1> The
agency further concluded that complainant established a prima facie
case of race and age because the three selectees, not in complainant's
protected classes, were selected for the Housekeeping Aid Supervisor
position. The agency further concluded, however, that management
articulated a legitimate, non-discriminatory reason for its non-selection
of complainant. The agency found that complainant did not establish
that more likely than not, the management's articulated reasons were a
pretext to mask unlawful discrimination
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, she 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. See 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. See 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. See 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. See U.S. 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); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
non-discriminatory reasons for its employment action, which we determine
were not persuasively rebutted by complainant. Specifically, the agency
presented evidence supporting a determination that the three selectees
were better qualified for the position than complainant. The Selecting
Official (SO) stated that she set up a panel of four members to interview
the candidates. The SO further stated that the panel interviewed and
scored each candidate; and made a recommendation to her. The SO further
stated that she was looking for someone with supervisory experience;
a good attendance record; and good work habits The SO stated that it
was her determination to select the three selectees for the subject
positions based on their supervisory experience. The SO stated that one
of the selectees had extensive experience operating his own business
and determined that such experience is reflective of someone having
management skills that excel. The SO stated that the second selectee
was very active in service activities; demonstrated excellent customer
service skills; and worked in a private business where supervisory skills
were developed. Furthermore, the SO stated that the third selectee
was a former supervisor in a prison.
One of the four panelists stated that the most important criteria
the panel looked at during the interview process was the supervisory
experience. The panelist further stated that complainant �was good,
but the other candidates was more qualified� based on their supervisory
experience.
Finally, we find that complainant has not demonstrated that the
agency's articulated reasons for the non-selection were a pretext for
discrimination.
Accordingly, the agency's finding of no discrimination regarding
complainant's non-selection for the subject position was proper and
is AFFIRMED.
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
November 4, 2004
__________________
Date
1The Commission will presume, for purposes of
analysis only and without so finding, that complainant is an individual
with a disability.