0120082213
08-27-2008
Lorenzo Holloway, Complainant, v. Robert D. Lenhard, Chairman, Federal Election Commission, Agency.
Lorenzo Holloway,
Complainant,
v.
Robert D. Lenhard,
Chairman,
Federal Election Commission,
Agency.
Appeal No. 0120082213
Agency No. FEC-EEO-2007-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 12, 2008 final decision 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.
During the period at issue, complainant was employed as an Assistant
General Counsel, GS-905-15, at the agency's Public Finance and Audit
Advice Team, Office of the General Counsel, located in Washington, D.C.
On May 11, 2007, complainant filed the instant formal complaint. Therein,
complainant alleged that the agency discriminated against him on the bases
of race (African-American) and in reprisal for prior EEO activity when,
on February 12, 2007, he was not selected to serve as Acting Associate
General Counsel for General Law and Advice.
The Selecting Official (SO) stated that prior to making her selection,
she consulted with her former supervisors, the former General Counsel,
and the Deputy General Counsel. More specifically, SO stated that she
and her former supervisors discussed "what employee in the office had the
skills and experience to fill the Associate General Counsel for General
Law and Advice (GLA) position on a temporary basis during the time that
I would serve as Acting General Counsel." SO stated that she and her
former supervisors informally reviewed the employees who they believed
had sufficient general law and management experience. SO stated that she
selected the selectee for the subject position because of his "management
experience, institutional knowledge, [and] his familiarity with work that
is done in the division, including placing closed Enforcement files on
the public record and personnel and labor relations matters."
SO stated that while complainant is a good manager, she felt that he did
not have "the breadth of experience required to manage a division that
handles questions that arise under a variety of areas of general law."
SO stated that complainant leads one of the two teams in the GLA Division
which is Public Finance and Audit. SO stated that complainant's team
focuses on advising the Audit Division and Reports Analysis Division on
legal issues that arise during audits, debt collection, and administrative
termination proceedings or that are related to reports filed with the
agency. SO stated that complainant's area of expertise "is in the laws
governing the public financing of presidential candidates, an important
but narrow area of the law administrated by the agency." SO stated that
the other team, Administrative Law, handles a variety of general laws
matters, including ones relating to disclosure, personnel, and labor
relations laws. SO stated that the selectee not only had management
experience "but recent extensive involvement in personnel matters that
exposed him to the laws and regulations governing matters that make
up a significant amount of the matters handled by the GLA Division."
SO stated that because of the selectee's recent experience in the
Enforcement Division, he also had more experience than complainant "in
the process for placing closed Enforcement matters on the public record,
an important function of the GLA division."
With respect to complainant's claim that SO selected the selectee
because of his administrative law experience but that the selectee
had no public finance and audit advice experience, SO stated that this
was not the case. Specifically, SO stated that in his role as Deputy
Associate General Counsel for Enforcement, the selectee "handled several
matters, including writing a proposed decision that ultimately resulted
in the removal of an agency employee." SO also stated that the selectee
"became intimately familiar with Enforcement case files and gained some
knowledge of the policy and consideration[s] that apply in placing them
on the public record." Furthermore, SO stated that while in Enforcement,
the selectee had "some exposure to the laws governing the public financing
of presidential candidates."
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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. 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); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
SO articulated a legitimate, nondiscriminatory reason for not selecting
complainant; to wit, because he did not process board experience necessary
for the subject position. This is adequate to rebut any initial inference
of unlawful discrimination raised in this case. Complainant has not
proven, by a preponderance of the evidence, that this articulated reason
was not true, but instead was offered to mask a discriminatory motive.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision because the preponderance of the evidence of record does
not establish that unlawful discrimination has occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 27, 2008
Date
4
0120082213
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036