01983031
09-05-2000
Charles G. Morgan, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Charles G. Morgan v. Energy
01983031
September 5, 2000
.
Charles G. Morgan,
Complainant,
v.
Bill Richardson,
Secretary,
Department of Energy,
Agency.
Appeal No. 01983031
Agency Nos. 97(25); 97(59); 97(60); 97(61); 97(62)
DECISION
Complainant 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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). Complainant alleged that he was
discriminated against on the bases of age (44), race (Caucasian), sex
(male), and in retaliation for his prior EEO activity when he was not
selected for five separate positions.
The record reveals that during the relevant time, complainant was employed
as a General Engineer, GS-13 at the agency's Nevada Operations Office.
Believing the agency had committed unlawful discrimination, complainant
sought EEO counseling and subsequently filed formal complaints on October
18, 1996 and December 13, 1996. The five separate complaints were
combined for investigation. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency. When complainant failed to make the election within the
requisite time period, the agency issued a final decision finding no
discrimination.
In its FAD, the agency concluded that complainant established prima facie
case of discrimination based on sex, race and/or age discrimination
regarding each selection because he was qualified for the positions
but was not selected in favor of the selectees, individuals outside
one or more of his protected classes. However, the agency concluded
that other than the selection for the position associated with agency
number 97(25), complainant failed to a establish prima facie case of
retaliation regarding the selections because he failed to demonstrate
that the selecting officials had any knowledge or connection to his prior
EEO activity. The agency then concluded that the selecting officials
articulated legitimate, nondiscriminatory reasons for their actions,
namely, that complainant did not possess the equivalent related work
experience as the selectees. Finally, the agency concluded that the
record clearly established that the selectees' qualifications for the
positions were plainly superior to complainant's qualifications and
that complainant did not provide evidence to show that discrimination
or retaliation motivated the selections in question.
On appeal, complainant contends that in four of the five selections,
there was an inference of preselection and that the selecting official
violated the agency's internal merit promotion procedures in making
the selections. The agency provides no response to the appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission agrees with
the agency that complainant failed to present evidence that more likely
than not, the agency's articulated reasons for its actions were pretext
for discrimination or retaliation. After reviewing the record, including
the selection packages for each selection, we find that complainant failed
to establish that he was as qualified as the selectees. While complainant
may have worked with the agency for a longer period than the selectees,
the record demonstrates that for each position complainant had less
experience relating to the job duties than the eventual selectee.
Moreover, the record is lacking credible evidence indicating that the
selecting officials had any discriminatory or retaliatory motive in not
selecting complainant for the positions. Therefore, after a careful
review of the record, including arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 5, 2000
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.