Allan J. Watkins, Complainant,v.Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity CommissionApr 3, 2000
01980176 (E.E.O.C. Apr. 3, 2000)

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investigation, complainant's conditional offer was rescinded because,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.