01a53864
10-05-2005
Gilbert A. Maupin, III, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Gilbert A. Maupin, III v. Department of Veterans Affairs
01A53864
October 5, 2005
.
Gilbert A. Maupin, III,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A53864
Agency No. 200M-0376-2003100824
Hearing No. 280-2004-00011X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant, a Programs Support Assistant, GS-7, at the agency's VA
Records Management Center in St. Louis, Missouri, filed a formal EEO
complaint on January 9, 2003, alleging that the agency discriminated
against him on the basis of race (Caucasian) when:
on November 15, 2002, he was informed that he was not selected for the
position of Supervisory Program Support Assistant, GS-8/9, pursuant to
announcement # 394-02-376-39-293.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following the January 18, 2005 hearing, complainant withdrew
his hearing request and requested that the agency issue a FAD.
In its April 7, 2005 FAD, the agency concluded that complainant
established a prima facie case of race discrimination because the
selectee, not in complainant's protected class, was selected for the
Supervisory Program Support Assistant position. The agency, however,
concluded that management articulated legitimate, nondiscriminatory
reasons for complainant's non-selection. The agency found that
complainant did not establish that more likely than not, management's
articulated reasons were a pretext to mask unlawful discrimination.
The record reflects that the selecting official (SO) received a Best
Qualified Certificate of Eligibles (BQ list) from the Human Resources
office. The record further reflects that the BQ list was comprised of six
candidates, including complainant, who were identified as being qualified
for the position of Supervisory Program Support Assistant, GS-303-8/9.
The record reflects that one of the six candidates withdrew his name
from further consideration. The record reflects that the SO stated that
after reviewing the five candidates' applications and interviewing the
candidates, she chose the selectee for the subject position because she
felt that she was the best qualified candidate. Specifically, the SO
stated that the selectee ranked first with a score of 26 points while
complainant was ranked third with 22 points. The SO further stated that
the selectee had fourteen years of work experience as a Lead Archivist;
had supervisory experience; had research organizational record knowledge;
had extensive knowledge of PIES, a computer system used by the agency;
and had good dependability.
Further, the SO stated that she did not select complainant because
she felt that complainant's work experience did not reach the level
of the actual experience possessed by the selectee. The SO stated
that she took complainant's annual leave balance into consideration
because she was looking for dependability in a supervisor along with
experience. Specifically, the SO stated that she was looking "in terms
of dependability on the level of having a supervisor, one that I knew
that would be there, that had shown that they could be there."
With respect to complainant's claim that he had acting supervisor
experience while working for the Tiger Team, the SO stated that
complainant never served in an acting capacity and that he was a
subject matter expert with the team. The SO further stated that she
supervised complainant while he was on the team, and that his duties were
mostly administrative. Specifically, the SO stated that complainant's
administrative duties were as follows: receiving the Tiger Team list;
ensuring the list was updated; determining which records were needed;
sending for the requested records; distributing the records; updating the
list after cases were returned to him; sending out e-mail correspondence
to the Cleveland Office; and preparing Fed-Ex forms to send out documents.
Furthermore, the SO stated that complainant's race was not a factor in
her determination to select the selectee for the subject position.
The record further reflects that the Human Resources Liaison (HR Liaison)
stated that she was responsible for examining the qualifications of the
candidates for the position of Supervisor Program Support Assistant,
GS-303-8/9. The HR Liaison further stated that she found complainant
qualified for the subject position and was referred to the SO on the
BQ list. The HR Liaison stated that while she had no involvement in the
selection process, the SO selected the selectee for the subject position.
With respect to complainant's claim that his race was a factor in his
non-selection, the HR Liaison stated that she felt that the selection
was made "fairly," and that the candidates' race was not a factor in
the SO's selection to select selectee for the subject position.
.
With respect to complainant's claim that the SO did not select him
because of his use of annual leave, the HR Liaison stated that each
selecting official has their own criteria and that "it's not unusual
for dependability to be a criteria." The HR Liaison stated that it was
appropriate and in accordance with the Merit Systems Promotion policy
for the SO to consider candidates' annual leave when considering them for
the subject position. The HR Liaison stated that because the SO had five
qualified candidates, she had to find a way to distinguish the candidates.
Furthermore, the HR Liaison stated that she thought dependability and
experience were two ways in which the SO could distinguish the candidates,
including complainant. With respect to complainant's claim that he
held a supervisory capacity with the Tiger Team, the HR Liaison stated
that complainant served as a subject matter expert, and that he had no
supervisory authority.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, the Commission finds that the agency
articulated legitimate, nondiscriminatory reasons for its employment
actions, which we determine were not persuasively rebutted by
complainant. Complainant has not demonstrated that the agency's
articulated reasons for its employment actions were a pretext for
discrimination.
Accordingly, the agency's final decision finding no discrimination is
AFFIRMED.
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
October 5, 2005
__________________
Date