01A40029
06-09-2004
Sterling L. Wilson, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Sterling L. Wilson v. General Services Administration
01A40029
June 9, 2004
.
Sterling L. Wilson,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A40029
Agency No. 02NCRWPSLW16
Hearing No. 100-A3-7078X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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 final order.
The record reveals that complainant, a Supervisory Building Management
Specialist at the agency's Potomac Public Building Services facility,
filed a formal EEO complaint on May 15, 2002. He alleged that the agency
had discriminated against him on the basis of his race (African-American)
when he was rated �ineligible� for three positions for which he had
applied, namely - (1) Construction Representative, GS-13, under Vacancy
Announcement 02990271; (2) Reimbursable Team Leader GS-13 under Vacancy
Announcement 02990131; and (3) Reimbursable Team Leader GS-13 under
Vacancy Announcement 02990181.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that the agency was wrong in its conclusion that
complainant was ineligible for the positions at issue because it applied
the wrong regulation in making its determination. Specifically, the
AJ found that the agency applied regulations governing pay and grade
retention when there has been a reduction in force (5 C.F.R. �536.102),
instead of regulations governing Time-In-Grade Restrictions. 5 C.F.R. �
300.605(b). In applying the correct regulations, the AJ found that
the agency should have determined that complainant was qualified and
eligible to be considered for these vacancies. Even so, the AJ found
that complainant did not demonstrate that his qualifications were
�plainly superior� to the selectee's, such that the agency's reasons
for not selecting him were a pretext for discrimination. In addition,
the AJ concluded that although there were some inconsistencies in the
testimony of personnel specialists involved in the decision not to
qualify complainant for these positions, two of the specialists did not
know complainant or the fact that he is African American. As to the
third personnel specialist who did know complainant, the AJ concluded
that complainant did not demonstrate this personal specialist, who was
of the same race, had a motivation to discriminate against complainant.
For these reasons, the AJ concluded that complainant did not establish
by a preponderance of the evidence that the agency discriminated against
him by not finding him eligible to be considered for the three vacancies.
The agency's final order implemented the AJ's decision.
On appeal, complainant argues that the errors of the personnel specialist
in her decision not to qualify complainant, as well as the disparities
in the testimony of the supervisory personnel specialists, indicated
that the agency's reasons could not be believed and compelled a finding
of discrimination. He argued that complainant did not need to establish
that his qualifications were demonstrably superior and that the issue
of his qualifications was only relevant to the issue of remedies and
not to the question whether there was discrimination. Even assuming,
arguendo, that complainant's qualifications were relevant, he argues that
his training and experience were superior to the selectee's. The agency
relies on the arguments it raised at the hearing and requests that we
affirm its final decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact and conclusions of law are supported by substantial
evidence in the record. We note that complainant failed to establish that
the agency's decision that he was not qualified for the position at the
GS-13 level, although incorrect, was motivated by complainant's race.
In addition, the AJ noted that the agency's reasons for disqualifying
complainant from consideration may have been wrong, but did not
necessarily compel a finding of discrimination in and of themselves.
As the Supreme Court has held, rejection of the employer's proffered
reasons will permit the trier of fact to infer intentional discrimination,
but a Title VII complainant at all times bears the �ultimate burden
of persuasion.�(emphasis in original opinion) St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). In this regard, the AJ's judgment
to look beyond the agency's eligibility determination was correct.
Furthermore, his finding that complainant did not establish that the
agency's failure to select him for any of the three positions because his
qualifications were not observably superior to those of the selectee's,
was supported by substantial evidence in the record. Accordingly, we
discern no basis to disturb the AJ's decision and we affirm the agency's
final order.
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
June 9, 2004
__________________
Date