01973243
06-21-1999
John W. Bush, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
John W. Bush, )
Appellant, )
) Appeal No. 01973243
v. ) Agency No. 09508F0020
) Hearing No. 37096X2665
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (Black), color (black)
and national origin (African-American) in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. when
he was not selected for the position of Supervisory Education Services
Specialist, GM-1740-13 at the agency's Camp Zama facility in Japan.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant filed a formal EEO complaint with the
agency on August 7, 1995, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the agency's
investigation of the complaint, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination. The AJ concluded that
appellant would be unable to prove intentional discrimination because
he could not adduce any evidence, other than his own unsubstantiated
speculation, to rebut the selecting official's assertion that he was
not aware of appellant's race when he failed to select appellant for
the position in question.<1> The agency's FAD adopted the AJ's RD.
It is from this decision that appellant now appeals.
The Commission finds that the AJ's RD summarized the relevant facts
and referenced the appropriate regulations, policies, and laws.
We note that the AJ did not conduct the complete three-part analysis
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
apparently being of the view that appellant's inability to prove that
the selecting official had knowledge of appellant's race would prevent
him from establishing a prima facie case of discrimination.
We need not address the question of whether a complainant alleging
racial discrimination in job selection must prove, as part of his
prima facie case, that a selecting official had actual knowledge of the
complainant's race. Here, even if appellant had established a prima facie
case, he would have been unable to prove, as McDonnell Douglas requires,
that the agency's stated reason for his nonselection<2> was a pretext to
conceal intentional racial discrimination. The AJ correctly concluded
that if appellant were unable to prove that the selecting official was
aware of appellant's race, a fortiori, appellant could not succeed in
proving intentional racial discrimination on the part of the agency.<3>
Accordingly, we discern no basis on which to disturb the AJ's finding
of no discrimination. Therefore, after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
6/21/99
DATE Carlton Hadden, Acting Director
Office of Federal Operations1 The selection process
had been conducted without personal interviews of
the candidates.
2 The agency satisfied its obligation under McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) to articulate a legitimate
nondiscriminatory reason for the nonselection. The record shows that the
selection process employed a pre-existing �matrix� of nondiscriminatory
rating criteria. The selectee was the applicant who received the highest
ranking in this process.
3 The same analysis applies to appellant's claims of discrimination on
the basis of color (black) and national origin (African American).