01A21629
05-29-2003
Keith C. Pruett, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Defense Logistics Agency Agency.
Keith C. Pruett v. Defense Logistics Agency
01A21629
05-29-03
.
Keith C. Pruett,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Defense Logistics Agency
Agency.
Appeal No. 01A21629
Agency No. JQ-00-039
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
ISSUE
Whether the agency discriminated against the complainant because of
his race (White) and sex, and whether the agency retaliated against him
for previously participating in protected Equal Employment Opportunity
(EEO) activity, when on December 27, 1996, he was denied a detail to
the position of Distribution Facilities Specialist, GS-2030-09.<1>
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Materials Handler at the agency's Defense Distribution
Depot in Richmond, Virginia. Complainant sought EEO counseling and
subsequently filed a formal complaint on February 21, 1997, alleging
that he was discriminated against as described above.
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. Complainant
did not respond to the agency's notice.
In its final decision (FAD) , the agency concluded that complainant failed
to show that he was treated differently from similarly situated employees.
Complainant claimed that a black female employee was detailed into the
vacant position, and later selected to the position because of her earlier
gained experience. However, the record showed that no one was detailed to
the vacant position, and that the prior incumbent's duties were shared by
four employees. While a black female was eventually awarded the position
in a competitive bid, complainant failed to apply for the vacancy.
On appeal, complainant contended that he never received the report of
investigation and the agency's FAD was an erroneous misrepresentation
of fact. In his appeal statement, complainant requested a hearing
before an Equal Employment Opportunity Commission administrative judge.
The agency requested that we affirm its FAD.
ANALYSIS
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Here, no evidence showed that anyone was detailed to the vacant position,
nor did complainant show that he applied for the position. Presuming
that complainant properly established a prima facie case of race, sex
and retaliation discrimination, we also find that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal,<2> the agency's response, and arguments and
evidence not specifically addressed in this decision, 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
____05-29-03______________
Date
1 Complainant had earlier raised claims that
in 1992, he was not detailed to or selected for a supervisor position;
that he was not afforded the opportunity to attend training classes; that
on March 25, 1996, he was required to lift approximately 70-80 pounds; and
that on March 18 or 22, 1996, he was moved out of the Receiving Division.
These claims were dismissed by the agency on February 1, 2000, pursuant
to 29 C.F.R. �� 1614.107(a)(1) and (a)(2). Complainant did not raise
these matters on appeal, and thus we conclude that he has abandoned
these claims. Voigt v. United States Postal Service, Equal Employment
Opportunity Commission (EEOC) Appeal No. 01931799, n. 1 (Apr. 28, 1994)
(complainant found to abandon claim where agency did not identify claim
in acceptance of issues, and complainant did not pursue in subsequent
processing); accord, Bernard v. Department of Veterans Affairs, EEOC
Appeal No. 01952691, n. 1 (Mar. 28, 1996)(complainant's claims to EEO
investigator abandoned where he failed to pursue them before EEOC at
administrative judge or appeal level of case processing.)
2 The record showed that the report of investigation was sent to
complainant's representative on June 16, 2000, and received at the
representative's office on June 21, 2000.