01985072
11-17-2000
Marvin Bell, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Marvin Bell v. Department of the Army
01985072
November 17, 2000
.
Marvin Bell,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01985072
Agency No. DAY-97-AR-0171-E
Hearing No. 210-97-6434X
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (African-American), national origin (African-American), sex
(male), age (over 40), and reprisal (prior EEO activity) in violation of
Title VII of the Civil Rights Act of 1964, 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.<1> For the reasons stated herein,
the agency's FAD is affirmed.
According to the record, complainant was a Contract Specialist, GS-11,
in a Michigan facility of the agency. In Spring 1996, he applied for
three GS-12 positions which totaled seven vacancies. There were three
vacant Contract Specialist positions and four vacant Procurement Analyst
positions<2>. In July 1996, the agency informed complainant of his
non-selection for each of the seven vacancies. Believing he was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint alleging that the agency discriminated against him
based on race (African-American), national origin (African-American),
sex (male), age (over 40), and reprisal (prior EEO activity).
At the conclusion of the complaint's investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a decision, without
a hearing on six of the non-selections and after a hearing on the
remaining non-selection, finding no discrimination. The AJ concluded
that the agency articulated a legitimate, nondiscriminatory reason
for its actions and that there was no evidence of pretext. The agency
issued a FAD concurring with the AJ's finding of no unlawful employment
discrimination. This appeal followed.
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. McDonnell Douglas, 411 U.S. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason for
its actions, we may proceed directly to determining whether complainant
satisfied his burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
The agency stated that complainant was not selected for any one of the
seven vacancies because the selectees were better qualified, based
on the criteria established by each rating panel, than complainant.
Specifically, the agency stated that work experience, training,
interest in the specific field of the vacancy, interview presentation,
and a panel's familiarity with a candidate's work were all considered.
Complainant indicated that the agency's articulated reason is pretextual
as displayed by the following: two of the selectees were trained by
him; several of the selectees had a previous relationship, as either
a subordinate or a peer, to the selecting official for the applicable
vacancy; one
of the selectees had problematic work habits; and black males were
under-represented in GS-12 and higher positions in the agency<3>.
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reason for its actions
were a pretext for discrimination. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's finding of no discrimination based on
race, national origin, sex, age, or reprisal.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 17, 2000
__________________
Date
1On 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.
2Three of the four Procurement Analyst vacancies were in the Support
Office. The fourth vacancy was in the Business Management Office.
A rating panel was convened to make the selection(s) for each office.
3The record contains statistics which fail to prove or disprove
complainant's contention of under-representation as it may pertain to
his complaint.