01A34621
07-15-2004
Robert W. Reed, Complainant, v. U.S. General Services Administration Agency.
Robert W. Reed v. U.S. General Services Administration
01A34621
07-15-04
.
Robert W. Reed,
Complainant,
v.
U.S. General Services Administration
Agency.
Appeal No. 01A34621
Agency No. 02-NCR-RWR-5
DECISION
Complainant initiated a timely appeal from a final Agency decision
(FAD) regarding 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 decision.
The record reveals that during the relevant time, Complainant was employed
as a Supervisory Realty Specialist with the United States General
Services Administration. Complainant applied to be a Deputy Director
for the Triangle Service Center within the Agency's DC office. After
being notified of his non-selection, Complainant sought EEO counseling
and subsequently filed a formal complaint on November 26, 2002, alleging
that he was discriminated against on the bases of race (African-American)
and sex (male) when he was not placed on the �Best Qualified� list
of individuals who were to be interviewed for the position of Deputy
Director for the Triangle Service Center.
Upon the completion of the investigation, Complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or to have the Agency issue a FAD. Complainant requested the FAD,
and the Agency concluded that Complainant had established a prima
facie case of race and sex discrimination, but that the Agency had
articulated a legitimate, nondiscriminatory reason for Complainant's
non-selection; the Agency asserted that the �Best Qualified� list was
assembled by three people, all men, one of whom was African-American,
and the alleged discriminating official�the supervisor who chose the
Selectee�had no input into the creation of the �Best Qualified� list.
The Agency determined that Complainant did not show that its proffered
reasons were pretextual, and that Complainant did not establish a case
of discrimination on the basis of his race or his sex.
On appeal, Complainant contends that the Agency's reasons for his
non-selection were pretext because when Complainant asked why he had not
been placed on the �Best Qualified� list he was told it was because he
did not elaborately answer the questions regarding his Knowledge, Skills,
and Abilities (KSA), and that those answers were the only information the
selecting committee reviewed. This reason was subsequently contradicted
when Complainant discovered that a coworker, Mr. A, who had been placed
on the �Best Qualified� list did not submit any responses in reference
to his KSAs, and that Mr. A had been evaluated entirely upon the basis
of his resume, despite the fact that Complainant had been told that no
other candidate documents were reviewed.
Additionally, Complainant alleges that there is strong evidence that the
Selectee was preselected because she has a prior relationship with the
selecting official. Complainant believes he was not placed on the �Best
Qualified� list because he has Veteran's preference and this would have
forced the selecting official to choose Complainant over the Selectee
because of mandatory guidelines regarding the selection of veterans.
In its appeal brief, the Agency reasserts that the selecting official
did not have the ability to make the �Best Qualified� candidate list
and therefore could not have discriminated against Complainant for he
was never before her review. The Agency asks that the Commission affirm
its FAD.
The Commission finds that Complainant properly established a prima facie
case of race and sex discrimination, however we also find that Complainant
failed to present evidence showing that more likely than not, the Agency's
articulated reasons for its actions were a pretext for discrimination.
Complainant has highlighted evidence from the record that could reflect
preselection for the position in question. Although such evidence could
cast doubt on the Agency's supposed legitimate non-discriminatory
reasons, the Complainant must still prove that the preselection was
motivated by discriminatory animus based on Complainant's membership in
a protected class. See Goostree v. State of Tenn., 796 F. 2d 854 (1986).
Moreover, Mr. A was of the same race and gender as Complainant, and his
placement on the �Best Qualified� list undermines Complainant's claim
of animus based on his sex and race. Complainant has therefore failed to
establish any evidence of discriminatory intent, and thus cannot prevail.
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, the Commission AFFIRMS the FAD.
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
_____07-15-04_____________
Date