01a00090
03-24-2000
John Sharpless, Jr., Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
John Sharpless, Jr., )
Complainant, )
) Appeal No. 01A00090
v. ) Agency No. 95-3278R
) Hearing No. 170-97-8458X
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (African-American)
and color (Black) 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). For the following reasons, the Commission affirms
the agency's final decision.
ISSUE PRESENTED
The issue on appeal is whether the FAD properly found that complainant
failed to show by preponderant evidence that the agency discriminated
against him based on race and color when he was not selected for the
position of Supervisory Police Officer in June 1995.
BACKGROUND
The record reveals that complainant, a Sergeant at the agency's U.S. Mint
in Philadelphia, PA, filed a formal EEO complaint with the agency on
September 18, 1995, alleging that the agency had discriminated against
him as referenced above. The complaint was dismissed as untimely by the
agency pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(2)). Complainant appealed
the decision to the Commission. The Commission vacated the agency's
dismissal and remanded the complaint for further processing by the agency.
Sharpless, Jr. v. Department of the Treasury, EEOC Appeal No. 01961095
(November 12, 1996). The agency filed a request for reconsideration
which the Commission denied but opened the matter on our own motion.
The Commission modified the previous decision and ordered the agency
to process complainant's complaint. Sharpless, Jr. v. Department of
the Treasury, EEOC Request No. 05970236 (March 27, 1997). Accordingly,
the agency accepted the complaint for investigation.
At the conclusion of the investigation, complainant was provided 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 complainant
established prima facie cases of race and color discrimination. Then,
the AJ examined the agency's reasons for not selecting complainant,
namely that the selectee had better communication skills and supervisory
skills; that the selectee had performed better than complainant in the
acting Supervisory Police Officer capacity; that selectee had volunteered
for more special assignments than complainant; and that complainant's
application for the position was sloppy and incomplete as compared to the
selectee's application. Finding that the agency articulated legitimate,
nondiscriminatory reasons for its action, the AJ turned to examine
complainant's argument that these reasons were pretext for discrimination.
The AJ concluded that complainant failed to establish that more likely
than not, the agency's reasons were a pretext for discrimination.
In reaching her conclusion, the AJ found that complainant failed to show
that he was far superior than the selectee; that the agency ignored the
seniority system of promotion which complainant alleged was the normal
method of selection, because the senior candidate was Black; and that
the agency preselected the selectee in a discriminatory manner.
The agency's final decision implemented the AJ's findings. On appeal,
complainant contends that the AJ relied on false testimony offered by the
selecting official and the AJ improperly denied complainant's witnesses
from testifying.
ANALYSIS AND FINDINGS
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 summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's race and color. We discern
no basis to disturb the AJ's decision.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, we AFFIRM the agency's final decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.