01A13659
09-19-2001
Herbert L. Jones, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Herbert L. Jones v. Department of Veterans Affairs
01A13659
September 19, 2001
.
Herbert L. Jones,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A13659
Agency No. 99-5796
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the bases of his race (Black)
and reprisal (prior EEO activity protected by Title VII and the ADEA),
when he was non-selected for a police officer position under vacancy
announcements 99-80, 99-80R and 99-95.
The record reveals that during the relevant time, complainant was
employed as a Housekeeping Aid (WG-2) at the agency's Brockton,
Massachusetts facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on October 12, 1999. 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. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of race discrimination but, that complainant established
a prima facie case of reprisal discrimination. The agency's analysis
then assumed arguendo that complainant had established a prima facie
case of both race and reprisal discrimination. The agency ultimately
concluded that complainant failed to prove that the reasons proffered
by the agency were a pretext for race and/or reprisal discrimination.
On appeal, complainant contends that the selecting officials would not
hire him because of his race and prior EEO activity. The agency requests
that we affirm its FAD.
BACKGROUND
During 1997, complainant applied for a position as a police officer
with the agency. The Chief of Police and Security Service (SO), and the
Acting Assistant Police Chief (RO) interviewed complainant but did not
select him for the position. Complainant then filed an EEO complainant
charging that the selecting officials SO and RO discriminated against
him on the bases of his age and race. Complainant withdrew his EEO
complainant before it reached adjudication.
On July 29, 1999, the agency posted a vacancy announcement for two police
officer positions at the agency's Brockton and Roxbury facilities (vacancy
announcement No. 99-80). Complainant applied and was listed as the only
qualified candidate for the positions. SO and RO, the same officials
named in the earlier complaint, choose not to select complainant for
either position.
On August 18, 1999, the agency re-announced the police officer positions
(vacancy announcement No. 99-80R). Complainant was considered
under this announcement and again, complainant was listed as the only
qualified applicant for the position. SO did not select complainant for
the position. Complainant then withdrew his application for the police
officer positions.
On September 1, 1999, the agency conducted a special search for qualified
applicants (vacancy announcement No. 99-95). The agency's Delegated
Examining Unit (DEU) performed the search, which produced three qualified
candidates for the position. SO selected one of the three candidates for
a vacant police officer position at the Brockton, Massachusetts facility.
The selectee is Caucasian with no prior EEO activity. The eleven members
of the Police and Security Service are Caucasian, one member of the
service has previously engaged in protected activity.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), we find that complainant has established a prima facie case of
race and reprisal discrimination. The agency's finding to the contrary,
notwithstanding, complainant has established a prima facie case of race
discrimination because he is Black; he was qualified for the position,
and the agency did not select him but instead solicited other applicants.
We agree with the agency's finding that complainant has established
a prima facie case of reprisal discrimination because he previously
engaged in a protected activity by filing an EEO complainant against
the same officials regrading a non-selection for the same police officer
positions; SO and RM were aware that they were named as the responsible
officials in the earlier complaint; subsequently, the agency non-selected
complainant for the police officer positions; and a nexus exists between
the protected activity and the adverse action inasmuch as only one year
passed between the instant non-selections and the previously-complained
of non-selections. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 26, 2000).
The agency argues that complainant failed to establish a prima facie
case of race discrimination because he withdrew his application for the
police officer position before the agency made the final selection.
Section 717(a) of Title VII expressly prohibits discrimination by
federal agencies against applicants for employment. At the time of
the final selection for the police officer position, complainant was
not an applicant for employment. As previously mentioned, complainant
had withdrawn his application by that time. Since we find that under
the facts presented, complainant has not established that it would have
been futile for him to submit an application under vacancy announcement
99-95, we conclude that he has failed to demonstrate that he is aggrieved
under our regulations. 29 C.F.R. � 1614.107(a)(1). There is no remedial
relief available for complainant relating to this specific non-selection.
See Moreno v. Department of the Treasury, EEOC Request No. 05940139
(October 28, 1994).
Despite this conclusion, we must still consider whether complainant has
established discrimination with respect to the police officer positions
announced under vacancy announcements 99-80 and 99-80R. In reaching
a conclusion regarding these non-selections, we have considered as
background evidence the selection made under vacancy announcement
99-95. As the sole applicant for the police officer positions under
vacancy announcements 99-80 and 99-80R, complainant is unable to offer a
similarly situated comparator. However, to establish a prima facie case,
complainant need only present evidence which, if unrebutted, would support
an inference that the agency's actions resulted from discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). It is
not necessary for complainant to show that a comparative individual,
from outside of her protected groups, was treated differently. O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). The facts of
the instant case give rise to an inference of discrimination. The agency
refused to interview or hire a qualified applicant for the police officer
positions. The agency continued to announce the vacancies until Caucasian
applicants, without EEO activity, applied. Accordingly, we find that
complainant has made a prima facie case of race discrimination.
Having established prima facie cases of race and reprisal discrimination,
the inquiry now shifts to the agency to proffer a legitimate
nondiscriminatory reason for non-selecting complainant for the police
officer positions. SO asserts that complainant was not selected for
the position because vacancy announcements Nos. 99-80 and 99-80R yielded
only one applicant for the positions and the agency needed to hire two
police officers. In addition, SO stated that he wanted more than one
application to consider. SO denies that complainant was disqualified
from consideration and suggests that if complainant had waited for the
agency to attract a larger applicant pool, his application would have
been duly considered.
Since the agency has proffered a reason for its actions, the burden now
shifts to complainant to establish that the agency's reasons are merely
were a pretext for discrimination. See United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983). Complainant
has not established that the agency's desire to enlarge the applicant
pool, is a pretext for discrimination. Complainant argues that a large
applicant pool is unnecessary where there is one position available and
one qualified applicant. However, based upon the agency's submissions,
it is clear that the agency has a policy in favor of increasing the
size of applicant pools. In the instant case the agency waited for
an applicant pool containing three qualified applicants, before making
the selection. Complainant does not rebut the value of having more than
one qualified applicant to choose from. The complainant has failed to
prove by a preponderance of the evidence that the agency discriminated
against him on the bases or his race of prior EEO activity. Accordingly,
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
September 19, 2001
__________________
Date