Larry S. Davis, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionFeb 2, 2007
0120055369 (E.E.O.C. Feb. 2, 2007)

0120055369

02-02-2007

Larry S. Davis, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Larry S. Davis,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 0120055369

Agency No. GA04018

DECISION

On August 12, 2005, complainant filed an appeal from the agency's July 15,

2005, final decision (FAD) concerning his equal employment opportunity

(EEO) complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal

is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission AFFIRMS the agency's FAD.1

On June 5, 2004, complainant filed a formal complainant of discrimination,

alleging discrimination in violation of Title VII and the Rehabilitation

Act on the bases of race (Caucasian), sex (male) and disability (back

injury and Post-traumatic stress disorder (PTSD)) when he was not selected

for the position of Technical Data Specialist (TDS), GS-2001-05, target

9.

The record reflects that at the time of the incidents at issue,

complainant had been employed as a Supply Technician, GS-2005-07, in the

agency's Acquisition and Authentication Branch, Defense Supply Center

in Richmond, Virginia, for three years. The record reflects that the

agency posted the Vacancy Announcement for the TDS position on February 9,

2004 and complainant applied for the position under the non-competitive

veterans register (VRA-1). Complainant was found to be qualified for

the TDS position and was referred for selection consideration, but three

(3) African-American females were selected for the positions (Selectees 1

and 2 had no disability; Selectee 3 was classified as unknown disability).

The record also reflects that the Selecting Official (SO; African-American

female, unknown disability) for the position was complainant's immediate

supervisor at the time of the selection. Although complainant was

employed at the GS-07 level, he applied for the TDS position at the

GS-05 level due to his status as a veteran with a 40% disability.

Complainant was on the non-competitive register for the position, while

the competitive register contained seven (7) African-American females

and one African-American male. The record indicates that the SO did not

review complainant's application for the position or interview him as

he was listed on the non-competitive register.2 The SO interviewed the

candidates on the competitive register, and based her selection decision

on the applicant's resume and interview responses. Investigative File

(IF) at 173-190. The record also indicates that the SO stated she chose

the selectees as they were experienced in acquiring, authenticating,

indexing and editing/cleaning technical data. The SO further stated that

the selectees had training in compiling technical data into complete

and technically adequate technical data packages (TDP) and they each

received training on the Bidset Management and Tracking Workflow System

used to track TDP's. IF at 46-53. The SO stated that complainant was

not selected as his name was not referred on the competitive roster,

and the agency's Human Resources office did not require that an applicant

be selected from the non-competitive roster.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b)

concluding that complainant failed to prove that he was subjected to

discrimination as alleged.

The FAD found that complainant established a prima facie case of

race and sex discrimination, as he is a Caucasian male and three (3)

African-American females were selected for the TDS positions at issue.

However, the FAD found that complainant failed to establish a prima

facie case of disability discrimination. In so finding, the FAD

noted that complainant had PTSD and a back injury, with a 40% veterans

disability rating, but failed to proffer evidence that his impairments

substantially limited him in any major life activities. The FAD noted

that complainant's status as a 40% disabled veteran did not render him

a qualified individual with a disability under the Rehabilitation Act.

The FAD then considered the agency's articulated reasons for not

selecting complainant for the TDS position at issue. The FAD noted

that while three (3) African-American females were selected for the

positions at issue, complainant believed he was more qualified than the

selectees. The FAD noted that the SO denied considering complainant's

race, sex and/or disability in her selection decisions. The FAD found

that complainant did not prove that the SO had a discriminatory animus

against him on the alleged bases. Regarding sex discrimination, the FAD

found that the only other male applicant was not selected due to his poor

interview performance, and the record showed that the SO had not selected

African-American females exclusively for positions. The FAD noted that

in April of 2003, the SO selected a Caucasian male and a Caucasian female

from a competitive roster, and thus there was no evidence that the SO

has not selected male and or Caucasian applicants when they appeared on

competitive rosters. Further, the FAD noted that complainant was listed

on the VRA-1 non-competitive promotion list (employees who applied for

positions under the Veterans Recruitment Authority), but agencies are

not required to select from a non-competitive register. As such, the

FAD noted that the SO was within her right to only consider candidates

from the competitive list. FAD at 5. In addition, the FAD found that

regardless of the means by which complainant applied for the position3

(as aVRA candidate or under the merit promotion system), he proffered

no evidence that his qualifications were demonstrably superior to those

of the selectees. FAD at 6.

In addition, the FAD noted that Caucasian males were under represented in

the agency for the job series of the TDS position, but statistics alone

were insufficient to establish that the agency's articulated reasons

were more likely than not a pretext for discrimination. In so finding,

the FAD found that complainant proffered no evidence to show that the

SO's decision to limit consideration to candidates on the competitive

roster was designed to adversely affect Caucasians, males or persons

with disabilities. As such, the FAD found that complainant failed to

establish that the agency's articulated reasons for its actions were

more likely than not pretextual in nature. In so finding, the FAD

noted that the evidence showed that management exercised its options

to select candidates from the competitive promotion register rather

than the non-competitive promotion register, and complainant failed to

demonstrate that management considered his race, sex or alleged disability

in its selection decision. Neither complainant nor the agency has made

appellate arguments to the Commission.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law") )

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that

a prohibited consideration was a factor in the adverse employment

action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency

to articulate a legitimate, nondiscriminatory reason for its actions. See

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981). Once the agency has met its burden, the complainant bears the

ultimate responsibility to persuade the fact finder by a preponderance

of the evidence that the agency acted on the basis of a prohibited

reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

Where the agency has articulated a legitimate, nondiscriminatory

reason for the personnel action at issue, the factual inquiry

can proceed directly to the third step of the McDonnell Douglas

analysis, the ultimate issue of whether complainant has shown by a

preponderance of the evidence that the agency's actions were motivated

by discrimination. See U.S. Postal Service Board of Governors v. Aikens,

460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation,

EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of

Health and Human Services, EEOC Request No. 05900467 (June 8, 1990).

After a review of the record, the Commission finds that complainant failed

to present evidence that more likely than not, the agency's articulated

reasons for its actions were a pretext for discrimination.4 In reaching

this conclusion, we note that complainant failed to establish that his

qualifications for the TDS position were observably superior to those

of the selectees for the positions. The record indicates that the SO

chose the selectees for the positions at issue due to their experience

and training, which complainant did not possess. IF at 46-53. The SO

stated that the agency's Human Resources office did not require her to

interview applicants from the non-competitive register, and the selectees

were selected from the competitive register due to their experience

with technical data and training in the area of TDPs. While complainant

correctly stated that he was listed on the Veterans Recruitment Authority

register as a disabled veteran, we find that he failed to carry his burden

of establishing that the agency rejected his non-competitive application

for the TDS position because of his race, sex or alleged disabilities.

We note that the record reflects that agency management was not required

to interview applicants on the Veterans Recruitment Authority register

as they are non-competitive applicants, and the SO stated complainant

was not interviewed as his name was not on the competitive register.

IF at 46-60. To the extent that complainant is claiming that the

agency failed to follow procedures related to the Veterans Recruitment

Authority appointment process, we note that we do not have jurisdiction

over these issues. 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 (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

_____ 2-2-07_____________

Date

1 Due to a new data system, your case has been redesignated with the

above referenced appeal number.

2 The record indicates that while the SO was aware of complainant's race

and sex, she was not aware of any impairment complainant may have had and

he never requested any accommodations. Report of Investigation at 46-53.

3 The FAD noted that the record was unclear regarding how complainant

applied for the position at issue. While complainant stated he

applied for the position under the merit promotion system and as a VRA-1

candidate, the agency's Human Resources Specialist stated that complainant

applied for the position only as a VRA-1 candidate. FAD at 6.

4 For purposes of analysis, the Commission will assume that complainant is

an individual with a disability under the provisions of the Rehabilitation

Act. We also note that although in the instant case complainant relies

on the fact that he has veterans' disability status, this does not

necessarily establish that he is disabled under the Rehabilitation Act.

McGrady v. United States Postal Service, EEOC Appeal No. 01976169 (July

10, 2000). As we have stated in prior decisions, veterans' preference is

not an enumerated basis for filing a formal EEO complaint. Administrative

responsibility for the affirmative action plan for disabled veterans

lies with the Office of Personnel Management. Bellantoni v. Department

of the Navy, EEOC Appeal No. 01983836 (September 9, 1999).

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0120055369

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120055369