01985260
05-03-1999
Gene E. Thomas, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Gene E. Thomas v. Department of Labor
01985260
May 3, 1999
Gene E. Thomas, )
Appellant, )
) Appeal No. 01985260
v. ) Agency No. 7-06-124
)
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (White), sex (male), and age (61), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. Appellant alleges he was discriminated against
when he was not selected for position of Equal Employment Specialist,
GS-0360-12, with the agency's Office of Federal Contract Compliance
Programs ("OFCCP"). 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 on March 10, 1997, the agency issued a vacancy
announcement for the above-mentioned position. Appellant applied and
was one of five applicants listed on the certificate for eligibles.
The Selecting Official ("SO") stated that after he received certificate
of eligibles, he decided only to interview the two applicants with direct
working knowledge of OFCCP. The SO stated that he selected the Selectee
(white, female, age 43) because she had previously worked for OFCCP in
the same series and grade.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on August 11,
1997. At the conclusion of the investigation, appellant 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 appellant
failed to respond within the time period specified in our Regulations,
the agency issued a FAD.
In its FAD, the agency proceeded directly to the pretext analysis, and
found that the SO's reliance on prior OFCCP experience qualified as a
legitimate, nondiscriminatory reason for his action. The agency then
concluded that appellant failed to offer credible evidence demonstrating
that the SO's reason was a pretext to mask discrimination. On appeal,
appellant makes numerous contentions, while the agency stands on the
record and requests that we affirm its FAD.
Appellant's allegations of race, sex and/or age discrimination
constitute claims of disparate treatment which are properly analyzed
under the three-tier order and allocation of proof as set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell
Douglas analytical paradigm need not be adhered to in all cases. In
appropriate circumstances, when the agency has established legitimate,
nondiscriminatory reasons for its conduct, the trier of fact may
dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, i.e., whether the complainant has proven by
preponderant evidence that the agency's explanations were a pretext for
discrimination. See United States Postal Bd. of Governors v. Aikens, 460
U.S. 711, 713-14 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990). Since the agency has articulated
a legitimate, nondiscriminatory reason for its action, the Commission
will consider whether the agency's explanations for its actions were a
pretext for discrimination.
Considering the facts of this case, which need not be repeated here,
we find that the record is devoid of any evidence which would suggest
that appellant's nonselection resulted for any reason other than the
SO's favorable weighing of prior OFCCP experience. Therefore, after a
careful review of the record, the Commission finds that appellant failed
to establish that the agency's reason for its action was pretext for
discrimination. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision.
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)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 this 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 this 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 this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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:
May 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations