01a03752
08-11-2000
Howard Wendell Brown, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Howard Wendell Brown v. Department of the Navy
01A03752
August 11, 2000
.
Howard Wendell Brown,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03752
Agency No. 97-65886-025
Hearing No. 150-98-8443X
DECISION
The complainant timely initiated an appeal from the agency's final
action concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. <1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). The complainant alleges
he was discriminated against on the bases of race (Black), sex (male)
and reprisal when the agency's responsible management official (RMO)
did not select him for the position of Hub Scheduler, GS-11, under Merit
Promotion No. 97-0083. For the following reasons, the Commission AFFIRMS
the agency's final action.
The record reveals that the complainant, a GS-09 Production Controller
at the agency's Naval Air Station, Jacksonville, Florida facility,
filed a formal EEO complaint with the agency on July 30, 1997, alleging
that the RMO had discriminated against him as referenced above. At the
conclusion of the investigation, the complainant received a copy of the
investigative report and
requested a hearing before an EEOC Administrative Judge (AJ). Following a
hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that the complainant failed to establish a prima facie
case of reprisal because he admitted that he had not engaged in prior
EEO activity. The AJ further concluded that the complainant established
a prima facie case of race and sex discrimination. Specifically, the AJ
found that the complainant applied for the position and was not selected
while the 14 selectees were all Caucasian males and females.
The AJ next concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that the record evidence supported the Selection Advisory Board's (SAB)
rating of the applications and their respective recommendations to
the selecting officials (SO), which did not include the complainant.
The AJ noted that the complainant's application did not provide the
same qualitative description of his experience, knowledge and skills
as the other candidates who were recommended. Thus, the AJ found that
the agency articulated a legitimate nondiscriminatory reason for not
selecting the complainant because he was not on the list of qualifieds
or alternatives.
The AJ found that the complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
that the applications in the record supported the SAB's recommendations
and thus the SOs' selections based on those recommendations. The AJ
further found that there was no evidence that the SAB's system of rating
had a disparate effect on the complainant or any other employee. The AJ
found no evidence that the complainant's nonselection occurred because
of his race, sex or in reprisal. The agency's final action implemented
the AJ's decision.
On appeal, the complainant restates arguments previously made at the
hearing. In response, the agency requests that we affirm its final
action.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951)(citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that the
complainant failed to present evidence that any of the agency's actions
were in retaliation for the complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's race or sex.
We discern no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, including the complainant's
contentions on appeal, we AFFIRM the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 11, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.