Lorenzo Holloway, Complainant,v.Robert D. Lenhard, Chairman, Federal Election Commission, Agency.

Equal Employment Opportunity CommissionAug 27, 2008
0120082213 (E.E.O.C. Aug. 27, 2008)

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