01973434
08-19-1999
Earl Smith, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Earl Smith v. Department of Veterans Affairs
01973434
August 19, 1999
Earl Smith, )
Appellant, )
)
v. )
) Appeal No. 01973434
Togo D. West, Jr., ) Agency No. 95-0858
Secretary, )
Department of Veterans Affairs, )
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 he was not selected for the position
of Housekeeping Aid Foreman. This 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 Housekeeping Aid at the agency's
Medical Center, New York, New York, filed a formal EEO complaint with the
agency on September 21, 1994, alleging discrimination as referenced above.
The agency accepted the complaint for processing, and at the conclusion
of the investigation, appellant was granted thirty days to request a
hearing before an EEOC Administrative Judge. After appellant withdrew
his request for a hearing, the agency issued a final decision finding
no discrimination.
The FAD concluded that appellant did not establish a prima facie case
of race discrimination because he failed to demonstrate that he was
qualified for the position. The FAD found that appellant did not meet
the specialized experience requirement of the position which called for
supervisory experience. On appeal, appellant contends that he was more
qualified than the selectee and that the agency's EEO Office failed
to adequately develop his case. The agency responds by restating the
position it took in its FAD, and requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973) and Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996), the Commission finds that appellant failed
to establish a prima facie case of race discrimination because he failed
to demonstrate that he possessed the requisite supervisory experience
as required by the position. While appellant asserts that he was more
qualified than the selectee and had superior education, we find that the
position did not contain an education requirement, but required experience
in supervising a group of employees. Appellant's application indicates
that he managed clients while employed at a daycare center, but does
not show that he has supervised a group of employees. Since appellant
failed to demonstrate that he possessed such supervisory experience,
we find that he was not qualified for the position.
As to appellant's contention that the agency's EEO Office failed to
adequately develop his case, we find that appellant did not provide any
support for this allegation. The record indicates that EEO Counselor
contacted all individuals involved in the selection and the EEO
Investigator took affidavits from all witnesses identified by appellant
and the agency.
Finally, we note that certain witnesses indicated that the selectee was
preselected for the position. However, the Commission has held that
preselection does not in itself violate Title VII when it is based on the
qualifications of the preselected party and not on some basis prohibited
by Title VII. McAllister v. United States Postal Service, EEOC Request
No. 05931038 (July 28, 1994); Goostree v. State of Tennessee, 796 F.2d
854, 861 (6th Cir. 1986). In this case, the evidence does not indicate
that the selectee was selected because of his race, but because he met
the qualification requirements of the position and was well liked by
management.
Therefore, after a careful review of the record, including appellant'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 (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 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations