Aaron A. Washington, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 28, 2000
01990702 (E.E.O.C. Nov. 28, 2000)

01990702

11-28-2000

Aaron A. Washington, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Aaron A. Washington v. Department of Agriculture

01990702

November 28, 2000

.

Aaron A. Washington,

Complainant,

v.

Daniel R. Glickman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01990702

Agency No. 950901

Hearing No. 130-97-8105-X

DECISION

Complainant timely initiated an appeal from the agency's final decision

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. <1> The

appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges

he was discriminated against on the bases of race (African-American),

sex (male) and reprisal when:

(1) in April 1995, he was non-selected for the position of Food Service

Inspector, GS-1863-08; and

(2) on May 23, 1995, complainant received a �meets fully successful�

for the element �makes PM inspection decisions� when he deserved an

�exceeds� on his annual performance evaluation.

For the following reasons, the Commission AFFIRMS the agency's 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).

After a careful review of the record, the Commission finds that the

AJ's recommended decision arrived at the appropriate conclusion; namely,

that complainant failed to establish discrimination. However, the AJ's

decision incorrectly stated that the establishment of a prima facie case

required a showing by a preponderance of the evidence. We take this

opportunity to correct the AJ. In order to establish a prima facie case,

the complainant need only present 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 Corp. v. Green, 411 U.S. 792 at 802 (1973).

Despite the legal error mentioned above, the AJ concluded that complainant

failed to establish that the agency's reasons are a pretext for

discrimination.<2> Regarding the AJ's finding that complainant did not

establish pretext, we find that the AJ's conclusions of law are correct

and that the AJ's findings of fact are supported by substantial evidence.

Accordingly, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

November 28, 2000

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 Although the initial inquiry in a discrimination case usually

focuses on whether the complainant has established a prima facie case,

following this order of analysis is unnecessary when the agency has

articulated a legitimate, nondiscriminatory reason for its actions. See

Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,

1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether he has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717

(1983).