01972413
03-03-1999
Ronald P. Jackson, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Ronald P. Jackson, )
Appellant, )
) Appeal No. 01972413
v. ) Agency No. 95-AR-013-E
) EEOC No. 120-95-6661X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts
this appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal complaint of discrimination in which he claimed
discrimination on the basis of race (Black), when he was not selected for
any of seven GS-13 positions posted by the agency. The agency accepted
the complaint and conducted an investigation. At the conclusion of the
investigation, appellant requested a hearing before an Equal Employment
Opportunity Commission administrative judge (AJ). A hearing was conducted
on December 14, 1995.
On November 20, 1996, the AJ issued a recommended decision (RD) finding
no discrimination. The AJ found that appellant, a Chemist, GS-1320-12,
in the Technical Support Division (TSD), applied for seven GS-13 positions
which were within the Base Closure Division (BCD), the Environmental
Compliance Division (ECD), the Installation Restoration Division (IRD)
as well as the TSD. The AJ found that each of the applicants for
the positions submitted a Form 2302R which detailed the individual's
past positions held, as well as their knowledge, skills, and abilities
(KSA's) for the respective positions held. The AJ found that panels
for each of the selections within a division were tasked with examining
the Form 2302R's and forwarding the names of the best qualified to the
selecting officials (SO). The AJ found that appellant's name appeared
on the best qualified list for the BCD and the IRD vacancies, and was
therefore referred to the SO, but not for the TSD or ECD vacancies.
The Panel Members (both white) for the ECD and TSD positions testified
that appellant failed to make the best qualified list because he did
not indicate that he had the requisite managerial experience, experience
handling multi-million dollar projects, or experience with environmental
technologies. The Staffing Specialist reviewed the names of those
individuals who did not appear on the best qualified lists and concurred
with the assessments. The ultimate selectees for the ECD position were
both white. The TCD position will be discussed in more detail below.
The AJ found that the SOs for the BCD positions were interested in
an individual with remedial investigation/feasibility experience.
The AJ found that the three selectees for the BCD positions (whites)
were previously working in the BCD prior to their selection. The SOs
each testified that they chose the selectees because of their experience
in remedial investigation/feasibility, and knowledge of environmental
regulations and laws. Each SO noted that appellant did not possess
such experience.
With respect to the position in the IRD, the SO (white) testified
that he chose the selectee (white) because of his experience in
the agency's Installation Restoration Program and his remedial
investigation/feasibility studies, an �essential requirement� of
the position. The AJ found that appellant failed to challenge such
assertions and show that he did in fact possess such experience.
With respect to the TSD position, the AJ found that the tentative selectee
was an individual (white) who appellant had trained and supervised within
the TSD unit. However, the AJ found that the initial TSD vacancy was
canceled because of complaints from appellant and other Black employees.
Specifically, they claimed that the selection process was discriminatory
because the KSA's portion of the application was not provided in advance;
the agency instituted an impermissible rating panel; and the agency
failed to consider its affirmative action plan. As a result, the agency
voided the selection for the TSD position and implemented changes to its
selection process. Specifically, panels now required one minority member,
the KSA's portion was to be provided to the applicants so that they could
supplement their application, and the rating panel was reconstituted with
employees above the grade level than that of the advertised vacancy.
However, despite the changes made to the selection process, appellant
failed to submit an application for the second vacancy. The agency did
not chose to re-announce the other vacancies.
In her analysis, the AJ found that appellant's complaint was comprised
of both disparate treatment and adverse impact claims. With respect to
his disparate treatment claim for his nonselection for the BCD and IRD
positions, the AJ found that appellant failed to offer any persuasive
evidence that raised an inference of discrimination and failed to
demonstrate that race was a factor in the agency's failure to select him.
Specifically, the AJ found that appellant failed to demonstrate that
he had the requisite experience in remedial investigation/feasibility
and knowledge and experience in environmental compliance. Furthermore,
appellant failed to undermine the significance of the skills the agency
articulated as necessary for the positions. Although appellant argued
that the selectees were preselected for the positions, he failed to
proffer any evidence that the purported preselection occurred because
of race. In sum, the AJ found that appellant failed to provide any
evidence that the agency's reasons for its actions were pretext for
discrimination because of his race.
With respect to the ECD and the TSD vacancies, for which appellant's name
did not appear on the best qualified list, the AJ found that appellant
failed to establish a prima facie case of discrimination in that he
failed to demonstrate he was qualified for the positions. Specifically,
appellant failed to rebut the agency's contention that he did not have
the requisite experience in multimillion dollar projects or experience
in the environmental area. Although the AJ found that appellant stated
he had more experience than the selectees for the TSD position, he failed
to introduce sufficient evidence of his qualifications, or engage in a
comparison of his qualifications with those on the best qualified list.
Finally, appellant failed to provide any evidence that the agency intended
to discriminate against him because of appellant's race. Although the
AJ found that appellant's omission from the best qualified list for the
TSD vacancy was �troubling� given that he worked in the TSD, appellant
failed to reapply for the position when it was re-announced.
With respect to appellant's adverse impact claims, the AJ found that
appellant failed to identify a neutral policy that had a significant
impact on persons of a protected class. Instead, the AJ found that
appellant pointed to the selection process as a whole, as well as
the fact that no Blacks were selected, although a number had applied.
Furthermore, the AJ found appellant failed to provide any data which
demonstrated that an employment practice caused the nonselection.
In sum, the AJ found that appellant had failed to prove, by a
preponderance of the evidence, that the agency discriminated against him,
as alleged. On December 9, 1996, the agency issued a final decision
adopting the AJ's finding of no discrimination. It is from this decision
that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
The Commission has reviewed the parties' statements on appeal and discerns
no basis in which to disturb the AJ's finding of no discrimination.
Although appellant generally argued that the process was discriminatory,
and points out that the applicants who already worked in the respective
divisions were ultimately referred to the selecting officials, he failed
to provide sufficient evidence which rebuts the agency's reasons for its
actions; namely that he did not have the requisite experience in the
areas called for in the positions. Appellant also failed to provide
sufficient evidence of disparate treatment because of race during
the selection process. Appellant points out that the TSD position was
re-announced, but also acknowledges that he did not apply. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
_____March 3, 1999__ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations