01975086
06-22-1999
Joseph Melton, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Joseph Melton v. Department of Veterans Affairs
01975086
June 22, 1999
Joseph Melton, )
Appellant, )
) Appeal No. 01975086
v. ) Agency No. 93-3169
) Hearing No. 270-94-9138X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
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) in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. Appellant alleges he was discriminated against when he was not
selected for the position of Utility Systems Operator Leader, WL-5406-10.
This 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, a Utility Systems Operator, WL-5406-9,
at the agency's Medical Center, New Orleans, Louisiana, filed a formal
EEO complaint with the agency on August 28, 1993, alleging discrimination
as referenced above. At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
("EEOC") Administrative Judge ("AJ"). Following a hearing, the AJ issued
a Recommended Decision ("RD") finding no discrimination.
The AJ concluded that appellant established a prima facie case of
racial discrimination because he was qualified for the position but was
not selected in favor of the selectee (White). The AJ then concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its action, namely, that the recommending official ("RO"), who would
serve as the selectee's supervisor, recommended the selectee because
of his initiative, knowledge, accuracy and ability to work with others.
The RO's recommendation was accepted by his two immediate supervisors and
the Chief of Engineering Service, who served as the selecting official.
In his pretext analysis, the AJ concluded that appellant failed to
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful racial discrimination. Specifically,
the AJ found that, even though the RO failed to follow proper agency
procedure when he only interviewed the selectee, this alone did not
demonstrate that the agency's articulated reasons were pretext for
unlawful discrimination. The agency's FAD adopted the AJ's RD.
On appeal, appellant restates arguments previously made at the hearing and
requests that a decision be rendered in his favor. The agency responds
by restating the position it took in its FAD, and requests that we affirm
its FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We note that nothing proffered by
appellant on appeal differs significantly from the arguments presented at
the hearing and given full and fair consideration by the AJ. We agree
with the AJ and find that the RO's failure to interview all of the
applicants, some of whom were outside appellant's protected class, does
not in itself demonstrate a discriminatory animus toward appellant.
Therefore, the Commission discerns no basis upon which to overturn the
AJ's finding of no discrimination in this matter. Accordingly, it is
the decision of this Commission to AFFIRM the agency's final decision
which adopted the AJ's finding of no discrimination.
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:
June 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations