01A14152
10-24-2002
Gregory W. Webb, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Gregory W. Webb v. Department of the Air Force
01A14152
October 24, 2002
.
Gregory W. Webb,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A14152
Agency No. 9V1M00534
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as an Electronics Integrated Systems Mechanic at the agency's Tinker Air
Force Base, Oklahoma City, Oklahoma facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on September 28,
2000, alleging that he was discriminated against on the bases of race
(African-American) and sex (male) when he was not selected to be the
primary Communications Security Responsible Officer (CRO).
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
failed to respond within the time period specified in 29 C.F.R. �
1614.108(f), and the agency issued a final decision.
In its FAD, the agency concluded that complainant stated a prima facie
case of race discrimination in that complainant, who is African American,
is a member of a protected group, he volunteered for primary CRO and
was qualified, but was not selected; and the selectee, who is Caucasian,
was not a member of complainant's protected group.
Complainant made no additional statements in support of his appeal.
The agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
a preponderance of the evidence that the agency's reasons for its
actions merely were a pretext for discrimination. Id.; see also United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983). In this case, the Commission finds that the agency
has articulated legitimate, nondiscriminatory reasons for its action
which complainant failed to show were a pretext for discrimination.
We reached this conclusion based on the fact that the selecting official
(S/O) stated she identified SC to be the primary CRO because he had
training experience and could perform training duties associated with
the communication security responsibility. S/O stated this was the only
difference between the primary and alternate CROs of which complainant was
one. S/O also testified that responsibility for communication security
is done on a volunteer basis and that because complainant volunteered,
he was given duties along with another individual as an alternate.
S/O stated the duties of the primary and the alternates were exactly
the same except that the primary CRO gave training as required by the
security procedures.
Complainant did not contest the S/O's reasons for identifying SC as the
primary contact for communication security but only contended that he
was better qualified based on his previous tenure as a CRO. Because he
failed to address S/O's reasons directly or to demonstrate that they
were not believable, complainant failed to establish that they were a
pretext for unlawful discrimination. Consequently, we conclude that
complainant failed to prove by a preponderance of the evidence that he
was discriminated against based on his race, sex or color.<1>
Therefore, after a careful review of the record, including complainant'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 (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 24, 2002
__________________
Date
1The agency's final decision addressed the
fact that complainant raised the issue of his non-promotion to WG-13
during pre-complaint counseling but that he failed to state it as a
claim in his formal written complaint. Complainant did not raise the
issue in his appeal and for that reason we do not address it.