01972198
03-10-1999
Russell S. Price, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Russell S. Price, )
Appellant, )
) Appeal No. 01972198
v. ) Agency No. 95-63-0060
) Hearing No. 120-95-6582X
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (African-American), color
(black), and sex (male), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges
he was discriminated against when the merit ranking panel rated him
too low for his name to appear on the merit program certificate for the
GS-510-15 Accounting Officer position, pursuant to Vacancy Announcement
Number CEN-94-47P. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that appellant, a GS-14 Chief of the Central Collection
and Surveys Branch, Governments Division, Bureau of the Census, filed a
formal EEO complaint with the agency on November 22, 1994, alleging that
the agency had discriminated against him as referenced above. At the
conclusion of the investigation, appellant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD)
finding no discrimination. While acknowledging the agency's position that
appellant established a prima facie case of discrimination based on race,
color and sex because he met the minimum qualifications of the position,
but was not referred, and thus not selected in favor of a Caucasian female
employee, the AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the panel members
who reviewed appellant's application against three quality ranking factors
(factors) were in agreement that appellant lacked experience in critical
areas which thus rendered him unable to meet any of the three factors.
Ultimately, appellant's application package received a score of fifty-six,
and this score was lower than the threshold score of eighty-two required
to be deemed �highly qualified� and referred to the selecting official.
The AJ found that appellant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination.
In reaching this conclusion, the AJ found that appellant's proffered
statistics were overly broad, not statistically significant, and not
sufficiently related to the specific non-selection so as to infer
discriminatory animus.<1> The AJ also noted that each of appellant's
perceived inadequacies or biases in the selection process were
insufficient to demonstrate racial animus because the panel members
who rated each applicant were unaware of the scoring system for the
applicants. The AJ discounted appellant's argument that he was more
qualified because he had an MBA and a CPA license, noting that the
selectee had hundreds of hours of relevant training courses, greater
years of experience than appellant, and that other candidates with CPA's
were, along with appellant, also deemed not �highly qualified.� The
AJ found that even if appellant had been deemed qualified in all three
factors, his resulting score, eighty-one, would still be insufficient
for him to be deemed �highly qualified.� The AJ thus concluded that
appellant failed to demonstrate that more likely than not, the agency's
reasons for not referring him to the selecting official were a pretext
for discrimination. The agency's FAD adopted the AJ's RD. On appeal,
appellant restates arguments previously made at the hearing. The agency
submitted a response brief, and requests that we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed
to demonstrate that more likely than not, the agency's action was
motivated by discriminatory animus. We agree with the AJ that generally,
statistical evidence of a racially unbalanced workforce is accorded
little weight in individual disparate treatment cases, and that the
statistics proffered here were, for the reasons set forth in the RD, not
relevant to demonstrate that more likely than not, the agency's reasons
were a pretext for discrimination. See Stevens v. EEOC, EEOC Appeal
No. 01970848 (August 14, 1997); Jackson v. Veterans Administration,
EEOC Request No. 05890295 (June 9, 1989). We discern no basis to
disturb the AJ's findings of no discrimination which were based on a
detailed assessment of the record and the credibility of the witnesses.
See Gathers v. United States Postal Service, EEOC Request No. 05890894
(November 9, 1989); Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the 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 the
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 the 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 the 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 the 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 10, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We note that the facts are adequately set forth in the AJ's RD and will
only be repeated herein to the extent necessary to resolve this appeal.