01980820
04-09-1999
Gene E. Thomas, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Gene E. Thomas, )
Appellant, )
) Appeal No. 01980820
v. ) Agency No. FWS-97-019R2
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
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-260-11/12. 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 November 4, 1996, the agency issued a vacancy
announcement for the above-mentioned position. Appellant applied and
was listed on the certificate for reinstatement eligibles. The Selecting
Official (�SO�) stated that he received seven different merit staffing
certificates and chose to use the GS-11 lateral transfer certificate to
select an applicant. On December 20, 1996, the SO selected the Selectee
(Hispanic, female, age 32) from the lateral transfer certificate.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on March 18,
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 concluded that appellant established a prima
facie case of race, sex and age discrimination. The FAD then concluded
that the agency proffered legitimate, nondiscriminatory reasons for its
actions, namely, that the SO chose to select from the lateral transfer
certificate which did not contain appellant's name. Finally, the agency
found that appellant failed to offer credible evidence demonstrating
that the SO 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.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411, U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requires a showing that age was a determinative factor, in the sense
that "but for" age, appellant would not have been subject to the adverse
action at issue),
Applying this analysis, the Commission agrees with the agency and finds
that appellant has established prima facie cases of race, sex and age
discrimination. However, as outlined above, the agency has successfully
rebutted that initial inference of discrimination with an articulation
of legitimate, nondiscriminatory reasons for the actions taken.
Specifically, the agency established that the Selectee was chosen using
a certificate that did not include appellant. After a careful review of
the record, the Commission finds that appellant failed to establish, by
a preponderance of the evidence, that the agency's articulated reasons
for its actions in this matter were unbelievable or that its actions
were more likely motivated by race, sex or age discrimination.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision of no discrimination.
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:
April 9, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations