0120071551
04-15-2009
Michael P. Kearins, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Michael P. Kearins,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120071551
Agency No. P20040220
DECISION
On February 1, 2007, complainant filed an appeal from the agency's January
18, 2007 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the final agency
decision (FAD).
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-8 Correctional Officer at the agency's Metropolitan Correctional
Center facility in New York, New York. On June 8, 2004, complainant
filed an EEO complaint alleging that he was discriminated against on
the bases of race (White) and sex (male) when, in or about, January
2004, he was not promoted to the position of Correctional Counselor and
agency officials posted a diversity statement on the first floor of the
correctional center.1
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). The agency notes
in its FAD that complainant timely requested a hearing but subsequently
withdrew his request.2 Consequently, 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.
ANALYSIS AND FINDINGS
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").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
The record shows that on January 27, 2004, complainant applied for
a vacant GS-9 Correctional Counselor position. A promotion board,
consisting of the Associate Warden (AW), a Human Resource Specialist
(HR), and the Unit Manager (M1), rated the applicants based on various
criteria, including ability to perform specific job elements, work
performance reviews, and awards. Each member of the promotion board
denied the assertion that the applicants' race, gender, seniority, or
sick leave played any part in the ratings determination of each applicant.
Based on the final ratings, the board deemed eight applicants, including
complainant, to be the "best qualified" applicants, and submitted the
"best qualified" list to the Warden (W1) to make the final selection.
W1 ultimately selected an African-American male correctional officer
(SE) for the position at issue. W1 averred that he selected the
best-qualified candidate for the position. He further averred that he
did not consider race and seniority in his decision. Contrary to W1's
statement, complainant asserts that when he and the EEO representative met
with W1 on June 1, 2004, W1 told them that he considered the seniority,
work performance reviews, and the amount of sick leave used by each
applicant. According to complainant, W1 confirmed that complainant's
seniority over SE should have "overruled" the fact that SE had an
"outstanding" performance review while complainant had an "exceeds"
review. Complainant also asserts that because W1 selected an applicant
with less seniority than he had, W1 must have based his decision on race
and a desire to promote minorities. Complainant noted that the diversity
statement signed by W1 that is posted in the correctional center "puts
pressure on [W1] to favor other staff [and] promote African-Americans."
The agency concluded that complainant failed to establish gender
discrimination because the undisputed record shows that SE is male. The
agency also concluded that, even when assuming that W1 told complainant
that he considered the applicants' seniority, work performance reviews,
and amount of sick leave used, none of those bases support a finding
of race discrimination. The agency also notes that the diversity
statement referenced by complainant states that the agency does not
discriminate based on "race, color, sex, religion, national origin, age,
disability status, sexual orientation, status-as a parent, marital status,
or membership in an employee organization." The diversity statement
further states that W1 "fully support[s] the goal of achieving, within
the institution workforce, at all organizational levels, a representation
of qualified African Americans, American Indians, Asians, Hispanics,
Pacific Islanders, Disabled Veterans, Individuals with Disabilities,
and Women proportionate to each group's respective presence, in the
civilian work force."
The agency notes, however, that W1 asserts that he did not consider race
in his promotion decision. Instead, according to W1, his decision was
based on which candidate was best qualified for the position. The agency
notes that W1's position is supported by the fact that SE received the
highest score by the promotion board. Moreover, the agency notes that
nothing in the record shows that W1 considered race in choosing SE over
complainant. Accordingly, the agency concluded that complainant failed
to support a finding of race discrimination.
The agency's explanation is sufficient to meet its burden of articulating
a legitimate, nondiscriminatory reason for its action. Complainant,
however, has adduced no evidence beyond his bare assertions that the
agency's explanation was merely a pretext for unlawful discrimination.
We note that the record is devoid of documentary or testimonial evidence
to corroborate complainant's account of the alleged meeting with W1 on
June 1, 2004, and there is no basis in the record to conclude that W1
considered any applicant's seniority, work performance reviews, or sick
leave balances when making the promotion decision.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant has not established his claim of discrimination. Accordingly,
the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 15, 2009
Date
1 Complainant's claim was originally separated into two claims. However,
as the agency notes in the FAD, the posting of the diversity statement
is more appropriately characterized as evidence in support of Claim 1
rather than a separate claim.
2 We note that the agency failed to produce the hearing record for the
Commission. However, complainant does not dispute the agency's account
of the procedural history on appeal.
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0120071551
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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