01A12441
08-06-2002
Bruce C. Rodgers, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Bruce C. Rodgers v. Department of Veterans Affairs
01A12441
August 6, 2002
.
Bruce C. Rodgers,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12441
Agency No. 200J-271
DECISION
This case involves an equal employment opportunity (�EEO�) complaint
filed by Bruce C. Rodgers (�complainant�) against his employer, the
Department of Veterans Affairs (�the agency�). This complaint, filed
on or around December 13, 1999, claimed that the agency discriminated
against him based on his race (White) and sex (male), in violation of
Title VII of the Civil Rights Act of 1964 (�Title VII�), as amended,
42 U.S.C. � 2000e et seq., by failing to select him for the position
of Social Work Associate. More specifically, complainant alleged that
an agency selection panel failed to choose him for this position (even
though he was qualified for it) because panel members knew he preferred
to date African American females.
The agency accepted complainant's allegations for investigation,
and supplied complainant with a copy of its investigative report on
the matter on or around August 23, 2000. The agency also informed
complainant that he now had the option of having either a hearing before
an administrative judge or a final decision rendered by the agency itself.
After complainant failed to elect either option within the requisite
deadline, the agency issued a final decision (�FAD�) on its own. In this
FAD, dated January 24, 2001, the agency concluded that complainant had
not proven that it had committed any illegal employment discrimination.
Complainant promptly filed a notice challenging this FAD with us,
the United States Equal Employment Opportunity Commission (�EEOC� or
�this Commission�). We accepted complainant's notice and docketed it
as this appeal.<1>
We are now issuing this decision under the authority granted to us by
29 C.F.R. � 1614.405(a). Under this same regulation, we must review the
FAD in question de novo (or �anew�). See 29 C.F.R. � 1614.405(a). This
means that in deciding this case, we can accept or reject the agency's
factual and legal conclusions at will. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO
MD-110�), at 9-15. Accordingly, we have carefully reviewed the entire
record before us in our attempt to discern whether a preponderance
of the evidence warrants a rejection of the agency's determinations
� or supports any finding of illegal employment discrimination here.
See 29 C.F.R. � 1614.405(a). We conclude that it does not.
Complainant's complaint raises claims of Title VII-proscribed race-based
and sex-based disparate treatment. With claims of this kind, where
there is no direct evidence of any illegal motive for the agency
actions in question, an evidentiary �burden of production� is placed
initially on the complainant to put forth a prima facie case of unlawful
discrimination. The complainant may do so by presenting facts which,
if unexplained, reasonably give rise to an inference of discrimination
(i.e., that a prohibited consideration was a factor in the relevant
adverse employment actions). If complainant successfully establishes
such a prima facie case, the evidentiary burden of production then
shifts to the agency to articulate legitimate, non-discriminatory
reasons for its ostensibly objectionable conduct. If and when the
agency offers such a lawful explanation, the evidentiary burden of
production shifts (one last time) back to the complainant to show
that the explanation offered is but a pretext for the agency's true,
prohibited discriminatory intent. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24
(1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981); United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Notwithstanding these shifting burdens of production, however, in any
Title VII claim of disparate treatment, the complainant at all times
carries the ultimate burden of persuading the finder of fact � by a
preponderance of (albeit circumstantial) evidence � that he or she
was a victim of intentional discrimination. See, e.g., Sweeney, 439
U.S. at 29 (Stevens, J., dissenting); Burdine, 450 U.S. at 256; Aikens,
460 U.S. at 716; St. Mary's Honor Center, 509 U.S. at 507, 511, 518; and
Reeves, 530 U.S. at 143. Complainant has not met this burden here with
respect to his various claims. Even if we assume for argument's sake
that he satisfied his initial obligation to put forth a prima facie case
of race-based and/or sex-based disparate treatment (e.g., the agency
concedes that he did), the agency responded accordingly. That is,
and as the agency explained in its FAD, the agency provided various
legitimate, non-discriminatory reasons for failing to pick complainant
for the Social Work Associate job in question (most importantly,
that the selection panel rated the African American female selectee
higher than it rated complainant, due to her experience, personality,
and interview performance). In our view, complainant failed to prove
that this facially legitimate, non-discriminatory agency explanation
was a pretext for any prohibited motivation.
In short, the preponderance of the evidence simply does not support the
notion that complainant was not selected because he is a White man.
Cf. St. Mary's Honor Center, 509 U.S. at 515, 519 (holding that �a
reason cannot be proved to be �a pretext for discrimination' unless it is
shown both that the real reason was false, and that discrimination was
the real reason� for the defendant's employment action, and noting that
�[i]t is not enough . . . to disbelieve the employer; the fact finder
must believe the plaintiff's explanation of intentional discrimination�).
Therefore, we conclude that the FAD in question must be affirmed.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled �Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 6, 2002
__________________
Date
1The agency filed a statement opposing this appeal, and urging us to
dismiss it as untimely. Because an analysis and resolution of this
timeliness challenge would not change the ultimate outcome here (revealed
below), we decline to address this issue.
2In a statement filed in support of his appeal, complainant argues that he
should have been given the right to a hearing before an administrative
judge, where he could have presented a complete evidentiary case.
However, the agency did inform complainant of this right on or around
August 23, 2000 � complainant simply omitted (or affirmatively chose not)
to exercise it in a timely fashion. See, e.g., 29 C.F.R. �� 1614.108(f),
1614.110(b) (requiring complainants to request a hearing before an EEOC
administrative judge within 30 days of receiving a copy of the agency's
investigative file � and empowering agencies to issue final decisions
in lieu of a hearing if complainants do not exercise their hearing right
within this time frame).