01a52945
10-06-2005
Phillip R. Dula, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Phillip R. Dula v. Department of the Army
01A52945
October 6, 2005
.
Phillip R. Dula,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A52945
Agency No. ARBBRAGG04OCT0039
DECISION
Complainant initiated an appeal from a final decision<1> concerning his
complaint of unlawful employment discrimination.
The record reveals that complainant was an applicant for employment at the
agency's Fort Bragg, North Carolina facility. When he was not selected
for hire, complainant sought EEO counseling and subsequently filed a
formal complaint on December 2, 2003, alleging that he was discriminated
against on the bases of race (African-American), disability, and age
(50)<2>, when:
On September 24, 2003, complainant was not selected for the position of
Electronics Mechanic, WG-2604-10, vacancy announcement X-BL-03-5242-SP.
Complainant subsequently amended his complaint, to allege that he was
also discriminated against on the basis of reprisal when:
Complainant was not selected for the position of Electronics Mechanic,
WG-2604-10, vacancy announcement X-BL-03-5242 SP, which vacancy
announcement closed December 8, 2003.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its May 9, 2005 final decision<3>, the agency concluded
that complainant failed to establish a prima facie case of race
discrimination with respect to claim (1) on the grounds that the agency
made no selection from the candidates who submitted applications for the
vacancy announcement that closed June 13, 2003, because the certificate
of eligible candidates expired before any selection was made. The agency
determined that complainant had established a prima facie case of reprisal
discrimination with respect to claim (2) because the selecting official
for the vacancy announcement that closed on December 8, 2003<4>, did
not deny awareness of complainant's EEO activity after complainant was
not selected in September 2003. The agency determined, however, that
complainant's interview score for the first position (claim (1)) was
rated the lowest of the candidates interviewed and the selecting official
(S1) determined that complainant was not qualified for the position.
Because S1 determined that complainant was not qualified for the position,
S1 informed S2, the selecting official for the second position, and
S2 determined that it was not necessary to interview complainant a
second time. The agency found that the selecting officials articulated
legitimate, non-discriminatory reasons for their actions and that no
discrimination occurred as alleged.
On appeal, complainant contends that he was the top rated candidate on
both eligibility certificates, should have been selected the first time
and should have been granted an interview during the second selection
process. Complainant points out that he has more than 25 years of
experience with electronics and that the interview panel's conclusion
that he was not qualified for the position is ridiculous.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), we find
that the agency properly concluded that complainant failed to establish
a prima facie case of race discrimination with respect to claim (1)
because no selection was made from among the candidates considered for
the position in September 2003 (the vacancy announcement that closed on
June 13, 2003). We further find that complainant did establish a prima
facie case of reprisal discrimination because the selecting official
was likely aware of complainant's EEO activity that occurred after the
first selection process (claim (1)) and before the commencement of the
second selection process (claim (2)).
We also find that complainant has not shown that the agency's reasons for
not selecting him and for not granting him an interview for the second
selection process were pretextual. In reaching this conclusion, we note
that two of the three agency officials conducting the panel interviews
for the first position (claim (1)), both stated that complainant was
unable to correctly answer several specific, technical questions that
were asked of all interviewees. Thus, the panel members each rated
complainant the lowest of any interviewee. Significantly, the Commission
notes that during the fact-finding interviews conducted in the course
of the investigation of complainant's complaint, complainant and one
panel member continued to disagree regarding complainant's knowledge
of the repair of fiber optic equipment. We note that in his statement,
S2, indicates that he considered the second vacancy announcement (claim
(2)) a continuation of the first selection process, and that because
complainant had already interviewed for the position in August 2003, it
was unnecessary to interview him again when the position was re-advertised
in December 2003. We find nothing in the record shows that S2's actions
were motivated by consideration of complainant's race or in reprisal for
complainant's prior EEO activity. Accordingly, the Commission finds
that complainant failed to show, by a preponderance of the evidence,
that discrimination occurred as alleged.
Therefore, we AFFIRM the agency's final decision finding no
discrimination.
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
October 6, 2005
__________________
Date
1The record indicates that complainant
initiated the instant appeal after which the agency issued a series of
final decisions, each correcting the prior decision, until ultimately
the agency issued its decision, dated May 9, 2005, from which we deem
complainant's appeal to be taken.
2Complainant subsequently withdrew the bases of disability and age during
the investigation of his complaint.
3The agency appears to have issued a number of decisions, the most recent
of which is dated May 9, 2005. This decision states that it supercedes
the agency's prior correspondence dated April 27, 2005, April 28, 2005,
and April 29, 2005.
4The record shows that the two vacancy announcements are for the same
position and bear the same announcement number, but with different closing
dates (June 13, 2003 and December 8, 2003). The second announcement
was essentially, a re-advertisement of the first announcement after
the agency failed to make a selection before the initial certificate of
eligibles expired.