Bennet F. Love, Jr., Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Security Service), Agency.

Equal Employment Opportunity CommissionAug 28, 2000
05a00735 (E.E.O.C. Aug. 28, 2000)

05a00735

08-28-2000

Bennet F. Love, Jr., Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Security Service), Agency.


Bennet F. Love, Jr. v. Department of Defense

05A00735

August 28, 2000

.

Bennet F. Love, Jr.,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Security Service),

Agency.

Request No. 05A00735

Appeal No. 01A00211

Agency No. DSS-98-022-15-M

DENIAL OF REQUEST FOR RECONSIDERATION

INTRODUCTION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Bennet

F. Love, Jr. v. Department of Defense, EEOC Appeal No. 01A00211 (March

24, 2000).<1> EEOC Regulations provide that the Commission may, in

its discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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. See 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.405(b)).

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly

determined that the agency did not discriminate against complainant on

the bases of sex (male), race (Caucasian), color (white), and age (DOB:

September 28, 1948) when he was not selected for one of six positions as

Supervisory Investigative and Security Specialist (Specialist position).

BACKGROUND

Complainant was a Supervisory Investigator, GS-12, in the Baltimore

Investigative Field Office, Towson, Maryland, from May 1986 to May

1998, and then employed as a Senior Investigator, GS-12, in the Greater

DC-Baltimore Operating Location, Hanover, Maryland. Complainant applied

for one of six Specialist positions, GS-13, in the Hanover Office under

Job Opportunity Announcement Number DIS-98-1783-DA. He was informed of

his non-selection on May 11, 1998. On July 27, 1998, complainant filed

a formal EEO complaint alleging discrimination as referenced above when

he was not selected for the position and when he was assigned from his

Supervisory position to the non-supervisory Senior Investigator position.

The agency dismissed the assignment issue for failure to contact the EEO

Office in a timely manner.<2> On September 7, 1999, the agency issued

its final decision (FAD) finding that it did not discriminate against

complainant when it failed to select him for the Specialist position.

In its FAD, the agency found that complainant established a prima facie

case of race, color, sex, and age discrimination. The burden then shifted

to the agency to articulate a legitimate, nondiscriminatory reason.

The FAD found that the agency did so and the burden then returned to

complainant to demonstrate that the agency's reasoning was pretext

for discrimination. The FAD found that complainant failed to do so.

Accordingly, the FAD determined that the agency did not discriminate

against complainant.

Complainant filed an appeal with the Commission. The previous decision

summarily affirmed the FAD. In particular, the previous decision

determined that based upon review of the record in its entirety, including

consideration of all statements submitted on appeal, that the record did

not establish by the preponderance of the evidence that discrimination

occurred.

In his request for reconsideration, complainant argues that the

previous decision was clearly erroneous based on material fact and that

the Commission failed to see through the agency's false statements.

Further, complainant notes that the previous decision would have an

adverse impact on employees of the agency by allowing the agency to

continue its �business plan�.<3>

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973);

Loeb v. Textron, 600 F.2d 1003(1st Cir. 1979). 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).

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. United States

Postal Serv. Bd. 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 Servs.,

EEOC Request No. 05900467(June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056(May 31, 1990).

In response to complainant's claims of discrimination, the agency

presented evidence that it did not select complainant for one of the six

Specialist positions because the selecting officials determined that

complainant was not one of the top six candidates for the position.

Namely, the agency argues that the selecting officials created an

evaluation matrix which was used by the three person interview panel.<4>

Based on numbers generated by the matrix, the selecting officials

ranked the candidates. Further, the selecting officials reviewed the

candidates' individual skills performance, achievements, and how the

candidates would operate a team of employees. After a review of the

criteria listed above, the agency selected six of the candidates for

the open Specialist positions. The agency argued that the six selectees

were better qualified than complainant for the positions. We find that

the agency has articulated a legitimate, nondiscriminatory reason for

its action.

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 did not show that the

agency's reasoning was based on a discriminatory animus against his sex,

race or age. Beyond his conclusory statements that the selection was

discriminatory, there is no evidence in the file to show that this was

the case. Therefore, the previous decision's affirming of the FAD which

determined that complainant failed to establish that he was discriminated

against was correct.

CONCLUSION

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 01A00211 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

August 28, 2000

__________________

Date

1On 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.

2Complainant failed to appeal the agency's dismissal to the Commission,

therefore, the dismissal of the assignment claim will not be addressed

in this decision.

3The Commission also notes that complainant stated that the previous

decision denied him his �day in court� and requested that the Commission

reopen the case on its own motion for further investigation and demand

more details from the agency pertaining to the selection process in

this case. Complainant was provided with the opportunity to request a

hearing before an EEOC Administrative Judge at the conclusion of the

agency's investigation. Complainant's concerns would have been best

addressed in such a hearing.

4The matrix allowed the panel to evaluate the candidates based on the

critical elements of: (1) Understanding Policy and Procedures of the

Industrial Security and Personnel Security missions; (2) Team Structure;

(3) Business Process Innovation; (4) Productivity Measurement and

Improvement Plan; (5) Building/Maintaining Interrelationships with Defense

Security Service and non-Defense Security Service servicing components;

(6) Building/Maintaining Customer Relations; and (7) Resource Management.