01A22432
09-24-2003
Willie H. Gray, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Willie H. Gray v. Department of Veterans Affairs
01A22432
09-24-03
.
Willie H. Gray,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22432
Agency No. 200L-2107
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 decision.
The record reveals that during the relevant time, complainant was
employed as a Nursing Assistant, GS-621-4 at the agency's VA Medical
Center in Little Rock, Arkansas. Complainant sought EEO counseling and
subsequently filed a formal complaint on May 11, 2001, alleging that he
was discriminated against on the bases of race (African-American) and
disability (post traumatic stress disorder (PTSD)) when, in March 2001,
he was not selected for the position of Housekeeping Aid Supervisor,
WS-3566-1 (target 2), in the Environmental Management Service.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
Complainant initially requested a hearing before an AJ but withdrew his
request and asked that the agency issue a final decision on the record.
In its FAD, the agency concluded that complainant had established a
prima facie case of race discrimination in that he is a member of a
protected group, he applied for the position, was qualified but not
selected, and a person not of his protected group (selectee - white)
was chosen. The agency found that complainant had not established
a prima facie case of disability discrimination, because the record
did not contain information which would indicate that complainant was
substantially limited in any major life activity by his PTSD, and the
selecting officials did not regard complainant as disabled. The agency
further found that the selecting officials had given legitimate,
nondiscriminatory reasons for not selecting complainant, in that they
stated that the selectee had more management experience and they found
him to be better qualified. The agency concluded that complainant had
not shown those reasons to be pretext for discrimination and concluded
that complainant had not been discriminated against.
Complainant submitted this appeal, but did not submit any argument as
to why the FAD was incorrect. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then 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 met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas Corp.,
supra. See Heyman v. Queens Village Committee for Mental Health for
Jamaica Community Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks
v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in
order to establish a prima facie case, complainant must demonstrate that:
(1) he is an "individual with a disability"; (2) he is "qualified" for the
position held or desired; (3) he was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give
rise to an inference of discrimination. Lawson v. CSX Transp., Inc.,
245 F.3d 916, 922-23 (7th Cir. 2001). The burden of production then
shifts to the agency to articulate a legitimate, non-discriminatory
reason for the adverse employment action. In order to satisfy his
burden of proof, complainant must then demonstrate by a preponderance
of the evidence that the agency's proffered reason is a pretext for
disability discrimination. Id.
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo that complainant established his prima facie cases
of discrimination<1>, we turn to the issue of whether the agency has
articulated legitimate, nondiscriminatory reasons for its actions.
The selecting official, and the management official who participated
in interviewing the candidates for the position, both testified that
they regarded the selectee as the best candidate for the position, given
that he had management experience in his background and had demonstrated
�excellent skills� in his time in his current position.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
We find that complainant has failed to do so. Complainant claimed that
he had more experience at the agency than the selectee did, and that
the agency selected a white candidate in order to fill some sort of
quota he believed existed. There is no evidence in the record that
this is true, and the personnel specialist denied that any quota to
have a certain number of white supervisors was in effect. Complainant's
application package included a letter from his psychologist requesting
that complainant be transferred to a �less stressful� job than that
of Nursing Assistant. Complainant believed that the Housekeeping Aid
Supervisor position would be less stressful as he testified that in this
position he would be able to deal with people on a one-on-one basis.
The personnel specialist testified that she believed that the position
would actually be more stressful.<2> We do not find that complainant was
not selected for the position for any reason other than the selecting
officials' belief that they chose the best candidate for the job.
Therefore, the agency's determination that complainant failed to establish
that he was discriminated against was correct.
Therefore, after a careful review of the record, including the agency's
response to the appeal, and arguments and evidence not specifically
addressed in this decision, we affirm 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
____09-24-03______________
Date
1 We assumed, for the purposes of analysis only, that complainant is an
individual with a disability.
2 To the extent complainant is claiming that he was denied a reasonable
accommodation in that he was denied a reassignment to a less stressful
position, we find that this issue was not accepted for investigation by
the agency and there is no evidence in the record which would allow us
to make a finding on this issue, beyond the statement of the personnel
specialist.