01972451
08-06-1999
Anthony T. Washington, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Anthony T. Washington v. Department of Commerce
01972451
August 6, 1999
Anthony T. Washington, )
Appellant, )
) Appeal No. 01972451
v. ) Agency No. 96-56-0265
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of race (Black), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges
he was discriminated against when: (1) the Director of the Office of
Network Support Operations, (Director), demanded higher educational
qualifications of African Americans than Whites to change their
occupational series from non-professional to professional; and (2)
when the Director advanced White employees over African Americans with
equal or superior educational qualifications. 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 appellant, a Computer Operator, GS-332-09,
with the Office of Network Support Operations alleged discrimination
as referenced above. He sought EEO counseling and, subsequently, filed
a complaint on June 18, 1996. At the conclusion of the investigation,
appellant was given the right to request a hearing or a FAD. Appellant
did not respond, so the agency, in accordance with 29 C.F.R. � 1614.110,
issued a FAD.
The FAD concluded that appellant failed to establish a prima facie
case of racial discrimination. With respect to allegation 1, the FAD
found that appellant presented no evidence that similarly situated
individuals not in his protected class were treated differently under
similar circumstances. With respect to allegation 2, the FAD found that
appellant was not aggrieved with respect to the selection of a white
employee for the position of Computer Specialist, GS-334-13, advertised
under Vacancy Announcement PTO-95-243, since appellant was not eligible
to compete for a GS-13 position. The FAD found that appellant's argument
that a GS-12 African American coworker should have been selected for the
position is invalid, as appellant may not prosecute an EEO complaint
on behalf of third parties.<1> The FAD nevertheless concluded that
even if appellant had established a prima facie case, the agency had
articulated legitimate, nondiscriminatory reasons for its actions, namely
that neither the Computer Operator position nor the Computer Specialist
position is a "professional" position. The agency's Personnel Specialist
indicated that neither position had any educational requirements beyond
a high school diploma and since the educational requirements are set by
the U.S. Office of Personnel Management, they could not be modified
by individual supervisors. The Director (Black), denied telling
appellant and other Black employees that they needed college degrees
to advance. The FAD found that he did however, tell the employees
that the agency offered Computer Network Administrator/Computer Network
Engineer training which would facilitate their entry into the Computer
Specialist series. The Director also indicated that the White employees
that appellant identified as being treated more favorably were all in
the Computer Specialist job series before he became Director. Further,
the FAD concluded that appellant failed to present evidence that more
likely than not, the agency's articulated reasons for its actions were
a pretext for discrimination.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), the Commission agrees with the agency that appellant
failed to establish a prima facie case of race discrimination. As there
is no evidence that suggests that similarly situated employees received
more favorable treatment. We find that there is also no evidence to
support a conclusion that the Director promoted White employees over
African Americans with equal or superior educational qualifications.
We also find that there is no evidence which indicates that higher
educational qualifications were needed by African Americans in
order to change their occupational series from non-professional to
professional. Therefore, after a careful review of the record, including
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 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The FAD noted that appellant's complaint may have been an attempt to
articulate a class complaint. Appellant was notified that should he
wish to file a claim on behalf of a class, he should do so promptly
since time limits applied.