Freddie J. Allen, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 22, 1999
01983858 (E.E.O.C. Dec. 22, 1999)

01983858

12-22-1999

Freddie J. Allen, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Freddie J. Allen, )

Complainant, )

) Appeal No. 01983858

v. ) Agency No. 96-1891

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of race and color (Black) and age (DOB: 1/30/41) in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.<1> Complainant alleges he was discriminated against when he

was not selected for the position of Food Service Supervisor in November

1992. The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the Commission affirms the FAD.

The record reveals that during the relevant time, complainant was employed

as a Housekeeping Aide at the agency's Medical Center in Bay Pines,

Florida. Believing the agency discriminated against him as referenced

above, complainant sought EEO counseling and filed a complaint on October

23, 1995. At the conclusion of the investigation and after complainant

withdrew his request for a hearing before an EEOC Administrative Judge,

the agency issued a final decision finding no discrimination from which

he now appeals. Neither party submitted a statement in support of or

in response to the appeal.

After a careful review of the record, based on the standards set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253-256 (1981) and Loeb

v. Textron, 600 F.2d 1003 (1st Cir. 1979), the Commission agrees with

the agency that complainant established prima facie cases of race,

color and age discrimination because he applied for and was qualified

for the position but was not selected in favor of a candidate outside

of his protected classes. The Commission finds that complainant

failed to present evidence that the agency's articulated reasons for

its selection were a pretext for discrimination. In reaching this

conclusion, we note that one of the Selecting Officials stated that

complainant's then-supervisor had given him a poor recommendation,

essentially stating that he was �not supervisory material.� We also

note that complainant had no recent experience in the food service

industry and had no specific experience in the preparation of �modified

diets� for people with dietary restrictions. The Selectee, who was

already performing the position at another agency facility, came highly

recommended. There is no probative evidence in the record to support

complainant's contention that the agency's selection was motivated

by discriminatory animus towards complainant's race, color or age.

Therefore, after a careful review of the record, including evidence not

specifically addressed in this decision, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

December 22, 1999

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

________________________

Equal Employment Assistant 1 On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations,

as amended, may also be found at the Commission's website at WWW.EEOC.GOV.