02a60003-0005
04-05-2006
Agency.
Elizabeth Williams, Joseph McDonnell, Don Rose v. HUD
02A60003, 02A60004, 02A60005
April 5, 2006
.
Elizabeth Williams, Joseph McDonnell, Don Rose,
Grievants,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal Nos 02A60003, 02A60004, 02A60005
Grievance Nos.050526-03853-7
DECISION
The grievants timely initiated an appeal from an Arbitrator's decision
concerning their grievances of unlawful employment discrimination in
violation of the Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.401(d) and .405.
For the following reasons, the Commission affirms the findings of the
Arbitrator.
The grievants were all GS-12s in the Philadelphia office of the
agency. They applied for three GS-13 Senior Real Estate Owned
positions. They were among those not selected for the positions
and filed a grievance on the matter. The grievants allege they were
discriminated against based on their age (McDonnell was 57, Rose was
61, and Williams was 58). Williams also raised a claim of race (African
American) discrimination. The selectees were ages 50, 48, and 41 and
all were Caucasian. The matters went to arbitration and a hearing was
held. Thereafter, the Arbitrator issued a decision finding there was no
discrimination and denying the grievances. Specifically, the Arbitrator
found that there were no violations of the contract and that the agency
�conducted itself admirably by pursuing a fair, equitable, reasonable
merit selection process... .� The Arbitrator found the testimony at the
hearing was highly credible and that the grievants failed to support
their claims.
Although the initial inquiry in a discrimination case usually focuses
on whether the grievants have 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 grievants have
established a prima facie case to whether they have demonstrated by a
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).
The agency explained that the selectees were considered better qualified
because they offered skills which the grievants did not possess -
one was bi-lingual, another an attorney and a licensed appraiser,
and another had excellent computer and technology skills and could be
relied upon to do reports and monitor contracts. None of the grievants,
all of whom made the qualified list, provided any evidence that his or
her qualifications were far superior to those of any of the selectees.
In their appeal from the Arbitrator's decision, grievants make many of
the same arguments that they made before - that the agency should not
have considered factors outside of the vacancy announcement and that
the agency violated the contract. The Commission notes that the agency's
consideration of skills not mentioned in the vacancy announcement, but
which the selectees offered, is a legitimate, nondiscriminatory reason
for its selections. The grievants also submitted numerous documents that
were already in the record.
The Commission finds that grievants did not show that the agency's
reasons for their nonselection were a pretext for discrimination. Nor
did they show that their qualifications were far superior to that of
any selectee. Therefore, after a careful review of the record, including
grievants' contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we affirm the
Arbitrator's decision with regard to the finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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
April 5, 2006
__________________
Date