01a54568r
12-01-2005
William Albert Leak, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
William Albert Leak v. Department of Veterans Affairs
01A54568
December 1, 2005
.
William Albert Leak,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54568
Agency No. 2003-0674-2004101820
Hearing No. 310-2004-00040X
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 Program Specialist at the agency's
Temple, Texas facility, filed a formal EEO complaint on April 20, 2004,
alleging that the agency discriminated against him on the bases of race
(African-American), sex (male), and in reprisal for prior EEO activity
arising under Title VII when on December 9, 2004, the agency failed to
select him for the position of Supervisory Program Specialist.
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 one-day hearing, the AJ issued
a decision finding no discrimination. The AJ concluded that complainant
failed to establish a prima facie case of reprisal, but established prima
facie cases of race and sex discrimination. The AJ further concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its actions, and complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
The record reveals that complainant previously served as a GS-9 Supervisor
in the Patient and Family Support service, but subsequently accepted
a GS-11 non-supervisory position which he held at the time of the
relevant non-selection. In November 2003, the agency announced the
vacancy for the Supervisory Program Specialist, GS-11/12, position.
Seven individuals, including complainant, were deemed qualified for
the position and referred for consideration to the selecting official,
who is complainant's supervisor (SO). SO conducted interviews with all
seven candidates and asked for recommendations from the three section
chiefs for the position. All three section chiefs recommended a White
female Supervisory Clerk, GS-10, who was selected for the position.
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.
In a claim such as the instant one which alleges disparate treatment
based upon race, and where there is an absence of direct evidence of such
discrimination, the allocation of burdens and order of presentation of
proof is a three-step process. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 142 (2000) (applying the analytical framework described in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA
disparate treatment claim). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that
a prohibited consideration was a factor in the adverse employment
action. Kimble v. Department of the Navy, EEOC Appeal No. 01983020
(Aug. 22, 2001). Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran
Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1) he
or she engaged in a protected activity; (2) the agency was aware of the
protected activity; (3) subsequently, he or she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000).
In this case, complainant is an African-American who was deemed qualified
for the position by the agency. The selectee is a White female.
Consequently, we find that complainant established a prima facie case
of race and sex discrimination. The record reveals that complainant
previously filed an EEO complaint in 1996. SO denied any knowledge of
complainant's previous EEO activity at the time she made the selection.
Complainant provided no evidence that SO was aware of his previous EEO
activity at the time of the non-selection. Complainant notes that he
also filed an EEO complaint on January 13, 2004, but the record reveals
that the relevant non-selection was made before this complaint was filed,
on December 9, 2003.<0> Consequently, we find that complainant failed
to establish a prima facie case of reprisal.
The burden of production now 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 articulated such a reason, the question becomes whether the
proffered explanation was the true reason for the agency's action, or
merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511 (1993). Although the burden of production may shift,
the burden of persuasion, by a preponderance of the evidence, remains
at all times on complainant. Burdine, 450 U.S. at 256.
In this case, the agency offered legitimate, non-discriminatory reasons
for its selection. Specifically, SO testified that the selectee was
chosen for the position because she was recommended by all three section
chiefs, exhibited the ability to produce high quality work and meet
deadlines, and had worked in several different positions, including as
supervisor. Complainant maintains that he was better qualified for the
position because he had supervisory experience and a bachelor's degree
in management. However, we note that the selectee was a Supervisory
Clerk at the time of the selection, and education was not the only factor
relevant to the position. We conclude that there is no evidence that
complainant's qualifications were observably superior to the selectee's
or any other persuasive evidence from which it could be concluded that
the agency's explanations were pretext for unlawful discrimination.
Consequently, we find that the AJ properly found no discrimination.
Therefore, 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, 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
_December 1, 2005______________
Date
0 1The record reveals that complainant learned of the non-selection on
February 9, 2004 from the agency's Human Resources office on February 9,
2004, but memorandum from the Human Resources Specialists reflects that
the selection was made on December 9, 2003.