01A03031
07-08-2002
Oscar J. Carpenter, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Oscar J. Carpenter v. Department of the Army
01A03031
July 8, 2002
.
Oscar J. Carpenter,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A03031
Agency No. ANEP980410060
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his complaint 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that during the relevant time, complainant was employed
as a WG-6 Materials Handler and Identifier at a Louisiana facility of
the agency. Complainant sought EEO counseling and subsequently filed a
formal complaint alleging that the agency discriminated against him based
on race (African-American) when it failed to select him for a GS-12,
Supply Management Representative position.
At the conclusion of the investigation, complainant was informed of
his right to elect a hearing before an EEOC Administrative Judge or an
immediate final decision by the agency. Complainant initially requested
a hearing, but later withdrew said request and asked the agency to issue
a final decision.
The agency issued a final order, finding no discrimination. Specifically,
the agency stated that complainant established a prima facie case
of discrimination, but failed to establish that the legitimate,
nondiscriminatory reason it articulated for complainant's nonselection,
i.e., selectee was better qualified, was pretextual. This appeal
followed. On appeal, complainant stated that he was better qualified
than the selectee because he had nine years of relevant experience that
he obtained during active military duty and that the recommending official
was an acquaintance of the selectee.
Although the Commission finds that complainant properly established a
prima facie case of discrimination, we also find that complainant failed
to present evidence that more likely than not, the agency's articulated
reason for its action was a pretext for discrimination. In reaching
this conclusion, we note that selectee had approximately seven years
of recent, relevant experience, whereas, complainant's most recent,
relevant experience was seven years earlier than the vacancy at issue.
We note further that the recommending official acknowledged that he was
familiar with the selectee from her prior employment at the facility.
We find that such familiarity does not equate to discrimination based
on an impermissible factor.
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 final
order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
July 8, 2002
__________________
Date