01995213
09-26-2001
Bernard Strickland, Complainant, v. John W. Carlin, Archivist of the United States, National Archives and Records Administration, Agency.
Bernard Strickland v. National Archives and Records Administration
01995213
September 26, 2001
.
Bernard Strickland,
Complainant,
v.
John W. Carlin,
Archivist of the United States,
National Archives and Records Administration,
Agency.
Appeal No. 01995213
Agency No. 9707
Hearing No. 160-97-8668X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) 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. Complainant alleges he
was discriminated against on the bases of race (African-American) and
reprisal for prior protected activity under Title VII, when he was not
selected for the position of Administrative Officer at the JFK Library.
The record reveals that complainant was employed as a Contact
Representative for the Social Security Administration at the time he
applied for the position at issue. On July 22, 1996, complainant
submitted his application to the agency in response to a vacancy
announcement. Complainant received a response from the agency, on
September 6, 1996, informing him that his application had not been
referred to the selecting official because the agency had received
applicants through the Interagency Career Transition Assistance Plan
(ICTAP), and those individuals had priority consideration. Believing he
was a victim of discrimination, complainant filed a formal EEO complaint
with the agency on December 20, 1996, alleging that the agency had
discriminated against him as referenced above. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
In the recommended decision (RD), the AJ concluded that complainant
failed to establish a prima facie case of reprisal discrimination.
Specifically, the AJ found complainant failed to demonstrate that his
prior EEO activity was close enough in time to the non-selection for
retaliatory motivation to be inferred. The AJ concluded that complainant
established a prima facie regarding his race discrimination claim, because
the ultimate selectee was not a member of his protected class. The AJ
went on to conclude, however, that the agency articulated a legitimate,
nondiscriminatory reason for its actions. Namely, that ITCAP regulations
require the agency to select a �well-qualified displaced employee from
another agency who applies for a vacant position...before selecting
any other candidate from outside the agency.� (RD page 9) Finally,
the AJ found that complainant failed to present any genuine dispute
of material fact that would allow a fact-finder to conclude that the
agency's articulated legitimate, non-discriminatory reason for its
employment action was pretextual or that the agency was motivated by
race bias or retaliatory animus.
The agency's final decision adopted the AJ's decision. On appeal,
complainant contends that the AJ erred in concluding that he did not
establish a prima facie case of reprisal. Complainant states he testified
against both the selecting official and the personnel staffing specialist
in his prior EEO complainant only nine weeks prior to the date his name
was excluded from the list of candidates submitted to the selecting
official for consideration. Complainant also argues that the agency
has no African-American employees at higher levels, and the filling of
the position with a selectee from outside the agency went against normal
agency practices. The agency requests that we affirm the FAD.
The Commission's regulations allow an AJ to issue a decision without a
hearing when she finds that there is no genuine issue of material fact
or credibility after applying the proper legal analysis. 29 C.F.R. �
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court does not sit as a fact
finder. Id. The evidence of the non-moving party must be believed at the
summary judgment stage, and all justifiable inferences must be drawn in
the non-moving party's favor. Id. A disputed issue of fact is genuine if
the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F. 2D 103, 105 (1st Cir. 1988).
A fact is material if it has the potential to affect the outcome of the
case. If a case can only be resolved by weighing conflicting evidence,
summary judgment is not appropriate. In the context of an administrative
proceeding under Title VII, an AJ may properly consider summary judgment
only upon a determination that the record has been adequately developed.
Here, we find that summary judgment was appropriate as there are no
material facts in dispute. We concur with the AJ that complainant set out
a prima facie case of race discrimination in that the selectee was outside
complainant's protected class. The Commission disagrees with the AJ's
finding that complainant did not establish a prima facie case of reprisal.
The testimony that complainant offered against the selecting official
and the personnel staffing specialist was close enough in time to the
non-selection to raise an inference of retaliatory motive. The agency
states, however, that because there were qualified applicants who had
priority consideration under ITCAP, the agency's human resource division
was required to provide such candidates with priority consideration, as
was also noted on the vacancy announcement. We find that complainant has
not shown that this legitimate, non-discriminatory reason was pretextual
or unworthy of belief. Further, complainant has proffered no persuasive
evidence to suggest that the selectee was not a qualified applicant
under ITCAP, or that following the ITCAP guidelines was outside normal
agency procedures. We note that while complainant's argument regarding
the lack of African-American employees at higher levels in the agency
is troubling, we find this statistic alone is not sufficient to overcome
the agency's legitimate, non-discriminatory reason.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race. We discern no basis
to disturb the AJ's decision. Therefore, 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 agency's final decision.
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
September 26, 2001
__________________
Date