Cleavester Ferrell, Jr., Complainant, Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionJan 7, 2000
01983522x (E.E.O.C. Jan. 7, 2000)

01983522x

01-07-2000

Cleavester Ferrell, Jr., Complainant, Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.


Cleavester Ferrell, Jr., )

Complainant, )

)

) Appeal No. 01983522

) Agency No. PH 96-02

Andrew M. Cuomo, )

Secretary, )

Department of Housing and Urban )

Development, )

Agency. )

)

DECISION

Cleavester Ferrell, Jr. (complainant) timely initiated an appeal to the

Equal Employment Opportunity Commission (EEOC) from the final decision

of the agency concerning complainant's claim that the agency violated

Title VII of the Civil Rights Act of 1964, 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. The appeal is accepted in accordance

with EEOC Order No. 960, as amended.<0>

The issue on appeal is whether the agency discriminated against

complainant on the bases of

of race (Black), age (51), and religion (Baptist) when he was not selected

for the position of Construction Analyst, GS-0828-13, advertised under

Vacancy Announcement Number 03-MS3-95-0020z.

Complainant filed a formal EEO complaint raising the issue stated above

and a formal investigation was conducted. Thereafter, the agency issued

a final agency decision (FAD) which found no discrimination.

The agency found that complainant established a prima facie case of age

and religious discrimination. The agency found that complainant did not

establish a prima facie case of race discrimination primarily because

the selectee was also Black.

The agency also concluded that it articulated a legitimate,

nondiscriminatory reason for its action, namely that the complainant,

according to the selecting official (SO), was not the most qualified

candidate for the position. Rather, according to the agency, the selectee

was chosen because of his combination of experience and professional

qualifications related to the quality ranking factors used.

Last, the agency found that complainant failed to prove pretext.

The agency rejected complainant's argument that the SO would have selected

a younger, White, applicant if there had been one on the Best Qualified

List and that the SO instead chose the youngest, Black applicant who

agreed with his religious belief, atheism The agency also found that

complainant did not support his claim that the SO had been known to

make discriminatory insulting remarks about older, Black employees.

In this regard, the agency noted that of twelve witnesses interviewed,

only two provided testimony that even vaguely supported this claim and

these two witnesses had not heard the SO make any specific derogatory

comments about older, Black employees. Finally, the agency emphasized

that none of the statistical evidence suggested that the SO, in previous

selection processes, based his choices on the candidates' race, religion,

or age.

Complainant's complaint constitutes a claim of disparate treatment

and the agency properly analyzed it under the three-tiered analytical

framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See also St. Mary's Honor Center v. Hicks, 5 09 U.S. 502

(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,

253-256 (1981). The Commission's analysis need not focus on the

establishment of the prima facie case where, as here, the agency has

articulated a legitimate, nondiscriminatory reason for its actions.

Washington v. Dept. of the Navy, EEOC Petition No. 03900056 (May 31,

1990).

Applying these legal standards, the Commission finds that the agency

correctly determined that complainant failed to prove, by a preponderance

of the evidence, that he was discriminated against because of his

race, religion or age. Complainant claimed, generally, that the SO was

biased against older, Black individuals and individuals of different

religious beliefs. However, we agree with the agency that complainant

submitted no persuasive evidence to substantiate these contentions.

Moreover, complainant presented no persuasive evidence that his

qualifications were superior to those of the selectee's qualifications.

Complainant also failed to rebut specific points made by the SO regarding

complainant's credentials, i.e., that: (1) complainant generally

resisted implementation of any streamlined, processing techniques; and (2)

complainant was sometimes abrasive and belligerent. Complainant also did

not adequately rebut the SO's testimony that the selectee had a better

understanding of the �entire underwriting process and particularly the

evolution of the agency into a customer driven enterprise.� Accordingly,

for these reasons and after careful consideration of the entire record,

we find that complainant failed to prove, by a preponderance of the

evidence, that he was discriminated against on the bases of his race,

religion or age.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

Jan. 7, 2000

DATE Carlton Hadden,

Acting

Director

Office of

Federal

Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

01 .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 of 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.