01a02263
11-09-2000
Lucius L. Brown, Jr., Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.
Lucius L. Brown, Jr. v. Equal Employment Opportunity Commission
01A02263
November 9, 2000
.
Lucius L. Brown, Jr.,
Complainant,
v.
Ida L. Castro,
Chairwoman,
Equal Employment Opportunity Commission,<1>
Agency.
Appeal No. 01A02263
Agency Nos. 0-9800011-HQ
1-9800083-HQ
0-9900007-HQ
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning three consolidated equal employment opportunity (EEO)
complaints 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. <2>
ISSUE PRESENTED
The issue presented herein is whether the agency's decision to fully
implement the decision of the Administrative Judge (AJ), issued without
a hearing finding no discrimination, was proper.
BACKGROUND
Complainant, a Social Science Research Analyst, GS-13, in the Office
of Research, Information and Planning (ORIP), filed three separate
EEO complaints. In the first complaint (0-9800011-HQ), complainant
claimed that he was discriminated against on the bases of his race
(African-American) and sex (male) when he was not selected for 1 of 4
positions as a Program Analyst, GS-14, in the Office of Field Programs
(OFP). In the second complaint (1-9800083-HQ), complainant claimed
that he was discriminated against on the bases of his race, sex, and
in reprisal for prior EEO activity, when he was not selected for the
position of Program Analyst, GS-13, in the Office of Field Programs (OFP).
In his third complaint (0-9900007-HQ), complainant claimed that he was
discriminated against on the bases of his race, sex, and age (47), when
he was not selected for the position of Management and Program Analyst,
GS-14, in ORIP.
Following the investigation of the three complaints, complainant requested
a hearing before an AJ. Prior to the hearing, the agency submitted a
motion for summary judgment claiming that there were no genuine issues
of material fact in dispute. Complainant opposed the agency's motion.
The AJ concluded that there was no dispute as to material facts and
that there was sufficient information upon which to base a decision
without a hearing. As a result, the AJ granted the agency's motion for
summary judgment and issued a undated decision finding no discrimination.
By a final action dated December 28, 1999, the agency stated that it
was fully implementing the AJ's decision finding no discrimination.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.109(g) authorizes AJs to issue decisions
without a hearing where the material facts are not in genuine dispute
and there is no genuine issue as to credibility. In the case before
us, we find that the AJ was correct in concluding that there were no
genuine dispute of the material facts and there was no genuine issue as
to credibility.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a case alleging
employment discrimination is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973).. Complainant has the
initial burden of establishing a prima facie case of discrimination
which can be shown by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination. McDonnell Douglas, 411
U.S. at 802. If complainant meets this burden, then the burden shifts
to the agency to articulate some legitimate, nondiscriminatory reason
for its challenged action. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To meet this burden the agency must produce
evidence of the stated reasons for its actions that is sufficient to
raise a �genuine issue of fact� as to whether discrimination occurred.
Id. at 254. If the agency is successful, then the burden reverts back
to complainant to demonstrate by a preponderance of the evidence that
the agency's reasons are a pretext for discrimination. Id. at 256.
Agency No. 0-9800011-HQ
It is undisputed that complainant established a prima facie case of
discrimination on the bases of his sex and race. Complainant applied
and was deemed qualified by the agency for 4 vacant Program Analyst
positions in OFP; he was not selected; and 4 individuals (1 Hispanic male,
1 Caucasian male, 1 African-American female, and 1 Caucasian female)
were selected. The agency articulated a legitimate nondiscriminatory
reason for complainant's non-selection. Specifically, the agency asserted
that it did not select complainant because it was not familiar with
his work, his Program Analyst experience did not include working with
field District Directors, and it did not want to hire someone who would
require a learning curve before full performance could be achieved.
The Commission finds that complainant failed to demonstrate that the
selecting official or recommending officials were familiar with his work,
that his Program Analyst experience included working with field District
Directors, or that he previously worked in OFP (thus eliminating the
need for a learning curve). In contrast, the record shows that all
of the selectees' work was known by the recommending officials and
the selectees all worked in the OFP as GS-13 Program Analysts prior to
their selection. Moreover, other than complainant's bare assertions to
the contrary, complainant failed to set forth any evidence demonstrating
that the agency's legitimate nondiscriminatory reasons were, in fact,
pretextual.
Complainant also argued that the recommending officials engaged in
pre-selection because they only chose individuals who had worked in OFP.
Pre-selection, however, does not violate Title VII when it is based
on the qualifications of the pre-selected party and not on some basis
prohibited by Title VII. Goostree v. State of Tennessee, 796 F.2d 854,
861 (6th Cir. 1986). In the instant matter, the explanation that the
selectees' experience working in the OFP was a factor in the selection
tends to weigh against the notion that the recommending officials judgment
of complainant's qualifications was based on discriminatory animus.
Rather, it proves that the recommending officials were most familiar with
the selectees' work habits, qualifications and knowledge of the office,
and based on this, they felt that the selectees were the best candidates
for the positions.
Complainant failed to show that there was any genuine dispute of the
material facts or that there was any genuine issue as to credibility.
Accordingly, the Commission finds that the AJ correctly granted the
agency's motion to issue a decision without a hearing and to issue a
finding of no discrimination.
Agency No. 1-9800083-HQ
The AJ found that complainant established a prima facie case of
discrimination on the bases of race and sex because complainant applied
and was deemed qualified by the agency for a Program Analyst position
in the OFP and an individual outside complainant's protected categories
was selected. Furthermore, the AJ found that the agency articulated
a legitimate nondiscriminatory reason for complainant's non-selection.
Specifically, the selecting official stated that she chose the selectee
over complainant because the selectee had more experience germane to the
available position and had more overall experience than complainant.
The Commission notes that complainant's application has a gap from
April 1984 to March 1993 in which no work history is provided. Again,
other than his bare assertions, complainant has failed to set forth
any evidence that would rebut the agency's legitimate nondiscriminatory
reasons and prove that they were pretextual.
Complainant failed to show that there was any genuine dispute of the
material facts or that there was any genuine issue as to credibility.
Accordingly, the Commission finds that the AJ correctly granted the
agency's motion to issue a decision without a hearing and to issue a
finding of no discrimination.
Agency No. 0-9900007-HQ
The AJ determined that complainant established a prima facie case of
discrimination on the bases of his sex and age, because complainant
applied and was deemed qualified by the agency for the available position
and an individual not in complainant's protected categories was selected.
The AJ further determined that complainant failed to establish a prima
facie case of discrimination on the basis of his race. In this case,
the selectee was a member of complainant's race and complainant failed
to present any evidence which, if unexplained, would reasonably give
rise to an inference of discrimination. See Shapiro v. Social Security
Administration, EEOC Request No. 05960403 (December 6, 1996) (citation
omitted).
The AJ found that the agency articulated a legitimate nondiscriminatory
reason for complainant's non-selection. Specifically, the selecting
official stated that she chose the selectee because the selectee had a
more complete and detailed application, and because the selecting official
concluded that the selectee had superior oral presentation skills.
Complainant failed to show that there was any genuine dispute of the
material facts or that there was any genuine issue as to credibility.
Accordingly, the Commission finds that the AJ correctly granted the
agency's motion to issue a decision without a hearing and to issue a
finding of no discrimination.
CONCLUSION
Based on the de novo review of the entire record before us, the Commission
finds that the AJ's decision finding no discrimination was proper and
that the agency's final action implementing the AJ's finding of no
discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
November 9, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from
those offices charged with the in-house processing and resolution
of discrimination complaints. For purposes of this decision, the term
"Commission" or "EEOC is used when referring to the adjudicatory authority
and the term "agency" is used when referring to the respondent party in
this action. The Chairwoman has recused herself from participation in
this decision.
2 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.