01A21803
08-08-2003
David A. Beers, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
David A. Beers v. U.S. Department of Housing and Urban Development
01A21803
August 8, 2003
.
David A. Beers,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A21803
Agency No. PH-99-02
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. 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 GS-1101-12/13, Single Family Housing Specialist at
the agency's facility in Buffalo, New York. Complainant sought EEO
counseling and subsequently filed a formal complaint on March 2, 1999,
alleging that he was discriminated against on the bases of sex (male),
disability (congenital lymphadema), and age (DOB: 10/16/47) when on July
28, 1998, he was not selected for either of two GS-1101-12/13, Single
Family Housing Specialist positions, Office of Housing, Single Family
Homeownership Center, Quality Assurance Division, Field Review Branch,
advertised under Vacancy Announcement Number 08-MSD-98-0012z located in
the Pennsylvania State Office.
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.
In its FAD, the agency concluded that complainant failed to show
that the agency discriminated against him on the bases sex, age,
and/or disability. Specifically, the FAD found that complainant did
not establish a prima facie case of disability discrimination. The FAD
also found that complainant did establish a prima facie case of sex and
age discrimination. The FAD further found that the agency articulated
legitimate, nondiscriminatory reasons for not selecting complainant.
In particular, the FAD noted that the selecting official (SO1: male, DOB:
5/13/50, no disability) reviewed the applications of each candidate on
the best-qualified list and made his selection based on the background
of those candidates. The FAD determined that complainant failed to
show that the agency's reasons for not selecting him were a pretext for
discriminatory animus.
On appeal, complainant contends, among other things, that the agency
failed to follow the Commission's policies and procedures in accordance
with the regulations set forth in 29 C.F.R. Part 1614. The agency did
not file a response to complainant's appeal.
Analysis of Improper Processing Claim
As a preliminary matter, we note that any claims regarding the improper
processing of a complaint must be raised during the processing of the
underlying complaint. See EEOC MD-110 (5-25), as revised, November 9,
1999. When claims of improper processing are raised, after either the
agency takes final action on the complaint or the AJ issues a decision,
they are dismissed for failure to state a claim pursuant to 29 C.F.R. �
1614.108(a)(8). Inasmuch as complainant's contentions concern processing
of the complaint, we conclude that they fail to state a claim.
Analysis of Non-Selection Claim
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions.<1>
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In cases involving non-selection, pretext may be demonstrated in a
number of ways, including a showing that complainant's qualifications are
observably superior to those of the selectee(s). Bauer v. Bailar, 647
F.2d 1037, 1048 (10th Cir. 1981). However, an employer has the discretion
to choose among equally qualified candidates. Canham v. Oberlin College,
666 F.2d 1057, 1061 (6th Cir. 1981). In the instant case, we find
that complainant has presented no evidence that his qualifications were
�observably superior.�
Accordingly, we find that complainant has failed to present sufficient
evidence to show that any of the agency's actions were a pretext for
discriminatory animus. Therefore, after a careful review of the record,
including complainant's contentions, 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
August 8, 2003
__________________
Date
1 Because we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions, we do not reach the issue of
whether complainant is a qualified individual with a disability.