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.