01990380
03-14-2002
Carl Huie, Complainant, v. Michael K. Powell, Chairman, Federal Communications Commission, Agency.
Carl Huie v. Federal Communications Commission
01990380
March 14, 2002
.
Carl Huie,
Complainant,
v.
Michael K. Powell,
Chairman,
Federal Communications Commission,
Agency.
Appeal No. 01990380
Agency No. FCC-EEO-97-6
DECISION
INTRODUCTION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleged in his complaint that he was
discriminated against on the basis of his national origin (Chinese-born
Asian-American) when, on June 27, 1997, he was informed that his request
to be promoted, based upon accretion of duties, to a GS-14 Electronics
Engineer position had been denied. For the following reasons, the
Commission AFFIRMS the agency's FAD.
BACKGROUND
The record reveals the following information pertinent to this appeal.
At all times relevant to the agency actions at issue, complainant was
employed as an Electronics Engineer, GS-13, at the agency's Office
of Engineering Technology in Washington, D.C. Believing he was a
victim of discrimination as described above, complainant sought EEO
counseling and subsequently filed a formal complaint on July 31, 1997.
At the conclusion of the agency's investigation into the complaint,
complainant requested that the agency issue a final decision.
In its FAD, the agency found that complainant had failed to establish
a prima facie case of national origin discrimination, as he failed
to establish that he �warranted a promotion to the GS-14 level,� and
that he had not provided sufficient information to support a conclusion
that persons of different national origin than that of complainant were
promoted under circumstances that give rise to an inference of unlawful
discrimination. The agency further found that it had articulated a
legitimate, nondiscriminatory reason for the denial�that complainant's
job duties failed to satisfy the requirements for a promotion through
accretion of duties. The agency concluded that the nonpromotion had
not been the result of unlawful discrimination. This appeal followed.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission.
29 C.F.R. � 1614.405(a).
In cases such as the instant appeal, where there is an absence of
direct evidence of discrimination, the allocation of burdens and order
of presentation of proof is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973). First, complainant
must 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. Kimble v. Department of the Navy,
EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
In order to establish a prima facie case of discrimination based
on national origin, complainant must show that he is a member of
a protected group and that he was subjected to an adverse employment
action. Packard v. Department of Health & Human Serv., EEOC Appeal
Nos. 01985494, 01985495 (Mar. 22, 2001). Complainant must also show
either that he was treated less favorably than other similarly situated
employees outside of his protected group, id., or must present other,
noncomparative evidence which supports an inference that the agency was
motivated by unlawful discrimination, see O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on
O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002,
at n.4 (Sept. 18, 1996).
While we disagree with the agency's analysis of complainant's claim,
we concur in its ultimate finding that he failed to prove that the
agency's decision to deny his promotion request was tainted with unlawful
discrimination. Applying the standards set forth in McDonnell Douglas
and its progeny, we find that, contrary to the agency's conclusion that
complainant failed to establish a prima facie case of national origin
discrimination, complainant did so establish a prima facie case because he
showed that he requested and was denied an accretion of duties promotion,
and that persons not of his national origin received such promotions.
See Stevens v. Equal Employment Opportunity Comm'n, EEOC Appeal
No. 01970848 (Aug. 14, 1997) (reversing finding of Administrative
Judge that complainant had failed to establish prima facie case of
discrimination in a nonpromotion because she failed to establish she was
qualified for the position�evidence showing complainant was not promoted
but others not of her race were promoted was sufficient to establish a
prima facie case of discrimination).
However, we further find that complainant failed to present evidence
that, more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that the agency presented uncontested evidence showing that,
upon complainant's making the promotion request, the appropriate agency
officials processed the required paperwork, and that the request
was reviewed, subjected to a desk audit, and then denied based upon
the guidelines established for promotions by accretion of duties.
Complainant failed to present any evidence (beyond that establishing
his prima facie case) which would suggest that the agency's proffered
reason for the denial was pretextual. Nor has complainant presented
any evidence that his national origin played any role in the denial.
Accordingly, complainant has failed to carry his �ultimate burden [under
the McDonnell-Douglas analytic framework] of persuading the trier of fact
that [the agency] intentionally discriminated� against him as claimed.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, it is the decision of the
Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 14, 2002
Date