01980176
04-03-2000
Allan J. Watkins, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Allan J. Watkins v. Department of Justice
01980176
April 3, 2000
Allan J. Watkins, )
Complainant, )
)
v. ) Appeal No. 01980176
) Agency No. F-95-4767
Janet Reno, )
Attorney General, )
Department of Justice, )
(Federal Bureau of Investigation), )
Agency. )
___________________________________)
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (EEOC) from the final decision of the agency
concerning complainant's claim that the agency violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted in accordance with 64 Fed.Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).<1>
The issue on appeal is whether the agency discriminated against
complainant on the bases of race (White) and sex (Male) when he was not
selected for the position of Special Agent.
Complainant filed a formal EEO complaint raising the issue stated above
and the complaint was investigated. When complainant did not request an
EEOC hearing within the designated time period, the agency issued a final
agency decision (FAD) which found no discrimination. Complainant now
appeals the FAD.
Complainant, not an employee of agency, applied for the position of
Special Agent (the Position). After successfully completing Phase I
and II of the application process, complainant received a conditional
appointment to the Position. The offer of conditional appointment stated
that the appointment was subject to, among other things, the "successful
completion of a background investigation." Following the background
investigation, complainant's conditional offer was rescinded because,
according to the agency, two of complainant's former employers gave him
unfavorable recommendations for employment.
The agency found that complainant failed to prove that his race or sex
played a part in the agency's decision not to select him as a Special
Agent. The agency stated that complainant was not chosen because two
of his former employers provided negative comments about complainant's
past performance. The agency noted that both former employers voiced
concerns about complainant's performance and attitude and that one of
the employers specifically stated that he could not recommend complainant
for employment. The agency found that complainant failed to support his
contention that the negative comments were fabricated by the individuals
who completed complainant's background investigation. The agency also
emphasized that complainant was given a conditional appointment to the
Position prior to the agency's receiving the negative comments from his
prior employers.
The agency also addressed complainant's statement that the Applicant
Coordinator (the Coordinator) commented during testing that the FBI
was actively recruiting minorities and that White, Males could only be
selected if they were exceptional or had special skills. The agency
concluded that even if these comments were made as claimed, they had no
effect on complainant's nonselection.
Complainant's complaint constitutes a claim of disparate treatment and
the agency analyzed it under the three-tiered analytical framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas
Dept. of Community Affairs v. Burdine, 450 U.S.248, 253-256 (1981).
Applying these legal standards, the Commission finds that the
agency correctly concluded that complainant failed to prove, by
a preponderance of the evidence, that he was discriminated against
based on his race and sex. Agency officials involved in the selection
process consistently testified that complainant was not selected for
the Position because his former employers did not give him favorable
recommendations. Complainant provided no evidence to support his
argument that the negative recommendations were fabricated so that he
would not be chosen for the Position. Nor did complainant provide any
other evidence which would lead one to suspect that race or sex played
a role in the nonselection. Finally, we agree with the agency that the
Coordinator's claimed inappropriate comments had no bearing, in this
particular case, on complainant's nonselection, even assuming that the
comments were made. While the comments, if made, were inappropriate,
the agency official said to have made them had no direct role in the
selection process; we note also that complainant was initially offered
a conditional appointment as Special Agent. Accordingly, after carefully
considering the record we find that complainant failed to prove that he
was discriminated against based on his race and sex.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
April 3, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
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 64 Fed.Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at WWW.EEOC.GOV.