01A30362
03-20-2003
Robert L. Chambers, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (National Imagery and Mapping Agency), Agency.
Robert L. Chambers v. National Imagery and Mapping Agency
01A30362
03-20-03
.
Robert L. Chambers,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(National Imagery and Mapping Agency),
Agency.
Appeal No. 01A30362
Agency No. SI-02E-15
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 decision.
The record reveals that during the relevant time, complainant was
employed as a Supervisory Security Guard, NI-0085, Payband 2, Sergeant,
in the Security and Installation Operations Directorate on the agency's
Security Guard Force, Security Plans and Operations Office, in Bethesda,
Maryland. Complainant sought EEO counseling and subsequently filed a
formal complaint on January 29, 2002, alleging that he was discriminated
against on the bases of race (African-American), disability (obesity),
and reprisal for prior EEO activity when he was not selected for
lateral reassignment to a Supervisory Security Guard, Band II position,
Announcement No. 014367.
The record reflects that complainant applied for the position, and the
agency rated him qualified. Complainant and three other candidates
were referred for consideration, and the Chief of the Security Police
Force (Chief) and the Deputy Chief of the Security Police Force (DC)
interviewed the four candidates. The DC recommended the selectee (Black,
not disabled, no prior EEO activity) (Selectee). After receiving approval
from the Head of Security Services (HSS), the Chief selected the Selectee.
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. When
complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision. In its
decision, the agency adopted the analysis as found in the Report of
Investigation and found no discrimination.<1>
On appeal, complainant contends, among other things, that the Selectee
should not have been selected because he had been unprofessional in
dealing with subordinates; and the Selectee was not as qualified for
the position as complainant. The agency requests that we affirm its FAD.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). For complainant
to prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, that is, that a prohibited consideration
was a factor in the adverse employment action. McDonnell Douglas,
411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978). The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met
its burden, the complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the agency acted
on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
For the purposes of this decision, the Commission assumes that
complainant established a prima facie case of race, disability, and
reprisal discrimination. Therefore, the burden shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its action.
Here, the agency presented evidence that the Chief selected the Selectee
because he believed that the Selectee showed more initiative than the
other candidates. Specifically, the Chief cited instances when the
Selectee cleaned and waxed police cars, extended himself �to the Officers
to show them how to better do things,� gave the Officers on-the-spot
instructions, and explained to the Officers how they could improve the
performance of their duties. The DC testified that he recommended the
Selectee based on the Selectee's ability to perform at a high level
of responsibility, as well as his appearance,<2> integrity, loyalty,
flexibility, and willingness to make decisions. The HSS stated that he
approved the Selectee's selection based on the Selectee's ability to do
his work, his expertise of information needed at the Lieutenants level,
and his ability to supervise employees.
Since the agency articulated legitimate, nondiscriminatory reasons for
its action, the burden returns to the complainant to demonstrate that the
agency's articulated reasons were pretext for discrimination. Complainant
contends that the Selectee should not have been selected because he had
been unprofessional in dealing with subordinates, as evidenced by one
employee's written complaint and another employee's verbal complaint.
Management testified, however, that they received a complaint naming the
Selectee after the selection at issue, and they believed the complaint
was without merit. Complainant also asserts that the Selectee was not
as qualified for the position as complainant. The Chief testified,
however, that the amount of experience and performance ratings of the
candidates were not the most important factors. The Chief considered
the candidates' knowledge to be equal since each candidate was found
qualified for the position by Personnel, but the Chief observed
that the Selectee had more initiative than the other candidates.
Complainant's supervisor (Supervisor) testified that he believed that
complainant's weight was a factor in his nonselection for the position.
We note, however, that the Supervisor further stated that he never heard
management make any comments about complainant's weight or appearance.
Moreover, the Supervisor never worked with the Selectee, and thus was not
familiar with the Selectee's performance. For the foregoing reasons,
the Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its action
were a pretext for discrimination.
After a careful review of the record, including arguments and evidence
not specifically addressed in this decision, the Commission AFFIRMS the
final agency decision.
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
___03-20-03_______________
Date
1 The Commission notes that �the role of the investigator is to collect
and discover factual information concerning the claim(s) in a complaint
under investigation and to prepare an investigative summary.� The Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 6-6 (November 9, 1999). The agency is to prepare �the
final decision consist[ing] of findings by the agency on the merits
of each claim in the complaint . . . .� Id. at 5-29. Accordingly,
the agency's analysis and findings should be included in the final
decision or in an attachment prepared by the agency, and not in the
Report of Investigation prepared by the investigator.
2 The DC stated that he was looking for a �professional appearance,
meaning that they are clean, neat, well-groomed.�