01982302
12-21-1998
Billy Edwards, Appellant, v. Togo D. West, Secretary, Department of Veterans Affairs,) Agency.
Billy Edwards v. Department of Veterans Affairs
01982302
December 21, 1998
Billy Edwards, ) Appeal No. 01982302
Appellant, ) Agency No. 97-0127
v. )
Togo D. West, )
Secretary, )
Department of Veterans Affairs,)
Agency. )
DECISION
Appellant timely initiated an appeal from a final agency decision
("FAD") concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The appeal is accepted pursuant to the provisions
of EEOC Order No. 960.001.
The issue presented is whether appellant was discriminated against based
his sex, race (Afro-American) and color (black) when he was not selected
for a position as Supervisory Clerk, GS-8.
Appellant was employed by the agency as a Food Service Worker, WG-2, when
he applied for, but was neither referred nor selected for, the position.
Appellant contended that he was qualified, and should have been referred
and selected, for the position because he has a Masters of Business
Administration ("MBA") degree. However, the vacancy announcement
for the position stated that the qualifications requirements for this
supervisory position included at least one year of specialized experience
at the next lowest level (GS-7) and did not provide that education
was one of,or could be substituted for the qualification requirements.
Of the 21 applicants for a position, four were males, but two of these
withdrew their applications. Eight of the applicants were Afro-American.
The five selectees were all female, and two were Afro-American.
Appellant's complaint was accepted by the agency, which complied with all
procedural prerequisites. After appellant failed to request a hearing,
the agency issued its FAD. In the FAD, the agency noted that appellant
could establish a prima facie case of discrimination by showing that:
(1) he was a member of a protected group; (2) he was qualified for and
applied for a position for which the employer was seeking applicants; (3)
despite his qualifications, he was not selected; and (4) the employer
continued to seek or actually selected a similarly qualified person
outside of his protected group(s). See Cuddy v. Carmen, 762 F.2d
119, 122 (D.C.Cir.), cert. denied, 474 U.S. 1034 (1985). The agency
questioned whether appellant was qualified for the position and could,
therefore, establish a prima facie case of discrimination. However, the
agency assumed for purposes of analysis that appellant met his burden
of establishing a prima facie case of discrimination and addressed
the question of whether appellant demonstrated by a preponderance of
the evidence that the agency's reasons for its actions were merely a
pretext for discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 714-17 (1983); Dixon-Smith v. United
States Postal Service, EEOC Petition No. 03970007 (May 14, 1997).
The agency found that appellant failed to establish that his nonreferral
and nonselection were due to discrimination based on his sex, race
or color. Noting that appellant's working experience was as a Food
Service Worker, WG-2, delivering food trays to patients and maintaining
a sanitary environment in the kitchen area, the agency found that the
relevant officials had properly determined that he lacked one year of
specialized experience at the GS-7 level. Accordingly, the agency found
that appellant failed to demonstrate pretext.
On appeal, appellant argues that malice is shown by the agency's failure
to select him for other positions, that his MBA should have served as
a substitute for one year of experience at the GS-7 level, and that a
female, Caucasian applicant was selected although her GS-9 work experience
should not have been credited for a position in the GS-303 series.
However, after a careful review of the record on appeal, the Commission
finds that the FAD adequately set forth the relevant facts and analyzed
the appropriate regulations, policies and laws. Therefore, it is the
decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Dec 21, 1998
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations