01A13301
07-18-2002
Azariah M. Ellington, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Azariah M. Ellington v. Department of Veterans Affairs
01A13301
July 18, 2002
.
Azariah M. Ellington,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A13301
Agency No. 220P-2169
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. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Computer Assistant, GS-7, at the agency's Loma Linda VA Medical
Center in Loma Linda, California. Complainant sought EEO counseling and
subsequently filed a formal complaint on April 18, 2000, alleging that
he was discriminated against on the basis of race (African-American)
when he was not selected for the position of Computer Specialist, GS-9,
and was therefore denied the opportunity for advancement.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that assuming, arguendo, complainant
established a prima facie case of race discrimination, it articulated
legitimate, non-discriminatory reasons for its actions. Specifically, the
agency stated that complainant did not have the necessary time-in-grade
for the position at issue. The agency stated that because complainant
had been a Computer Assistant, GS-7, for no more than a few weeks
at the time he applied for the GS-9 position, he was not a qualified
applicant and his name was, therefore, not referred for consideration.
The FAD concluded that complainant failed to show that these legitimate,
non-discriminatory reasons were mere pretext for discriminatory animus.
On appeal, complainant contends that because his previous experience
was not accepted when he was originally hired for the Computer Assistant
position, he was hired at a lower grade than appropriate and subsequently
was not promoted to the GS-7 level until shortly before applying for the
position at issue. Complainant further contends that had he been hired
at the appropriate level originally, he would have had the necessary
time-in-grade to qualify for the Computer Specialist, GS-9, position.
The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), we find that assuming, arguendo, complainant
established a prima facie case of race discrimination, the agency
articulated legitimate, non-discriminatory reasons for not selecting
complainant for the position at issue. The record reflects that federal
regulations require that �candidates for advancement to a position
GS-6 through GS-12 must have completed a minimum of 52 weeks [in a
position]...no more than two grades lower� than the position to which they
are applying. (Report of Investigation, Exhibit C-5, 5 C.F.R. � 300.604
(b)(1)). The record further reflects that complainant was promoted
to a GS-7 position in December 1999, and he applied for the position
at issue in January, 2000. The agency states that because complainant
had not been in the GS-7 position for the required 52 weeks, he was not
qualified for the GS-9 position, and his name was not referred to the
selecting official. We find that complainant has not shown that the
agency's legitimate, non-discriminatory reasons are pretextual, nor has
he shown that his non-selection was motivated by discriminatory animus
toward his race. We note that on appeal complainant contends that his
position should have been classified higher when he was originally hired
as a Computer Assistant. However, there is no showing that complainant
timely challenged his original classification and complainant has not
proffered abt persuasive evidence to show that his position was misgraded.
After a careful review of the record, including complainant'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 (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
July 18, 2002
__________________
Date