Curtis Mitchell, Jr., Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 21, 2001
01A01951 (E.E.O.C. Dec. 21, 2001)

01A01951

12-21-2001

Curtis Mitchell, Jr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Curtis Mitchell, Jr. v. Department of Veterans Affairs

01A01951

December 21, 2001

.

Curtis Mitchell, Jr.,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A01951

Agency No. 93-2856

DECISION

On June 7, 1999, complainant timely initiated an appeal from a final

agency decision (FAD) dated May 25, 1999, 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 that he was discriminated against on the basis of

his race (African American) when in February 1993, he was not selected

for the position of Firefighter, GS-5, Vacancy Announcement No. 93-C-26.

For the following reasons, the Commission AFFIRMS the agency's final

decision finding no discrimination.

The record reveals that during the relevant time, complainant was employed

as a Housekeeping Aid, WG-2/5 in the Environment Management Services

(EMS) at the North Little Rock, Arkansas, facility known as Fort Root's

Veterans Affairs Hospital. Believing he was a victim of discrimination,

complainant sought EEO counseling on April 7, 1993, and subsequently

filed a formal EEO complaint on July 7, 1993. At the conclusion of the

investigation, complainant was informed of his right to request a hearing

before an EEOC Administrative Judge (AJ) or alternatively, to receive a

final decision by the agency. Complainant requested a hearing which was

held on October 24 and 25, 1994, and July 11 and 12, 1995. Since the

issues raised by complainant were substantially identical to complaints

filed by five of his co-workers, the AJ sua sponte, consolidated the

six separate complaints for hearing.<1> At the hearing, the agency

requested that the complaint be remanded for consideration of timeliness,

but the AJ declined and proceeded with a hearing. Following the hearing,

the AJ issued a recommended decision finding discrimination on September

21, 1995.

On November 13, 1995, the agency issued its FAD rejecting the AJ's

recommended finding of discrimination. Complainant appealed and

we reversed the FAD and ordered the agency to give complainant an

opportunity to show that he initiated timely EEO counselor contact.

We also ordered the agency to issue a new FAD dismissing the complaint

or, in the alternative, to issue a new FAD accepting, rejecting or

modifying the AJ's recommended decision. See Mitchell v. Department of

Veterans Affairs, EEOC Appeal No. 01962214 (February 26, 1997), aff'd,

EEOC Request No. 05970626 (December 3, 1998).

On May 5, 1999, after collecting additional information from complainant

regarding timely EEO counselor contact, the agency issued its FAD

dismissing most of complainant's non-selections for untimeliness.<2>

The agency also accepted two non-selection claims for further processing

that were not heard by the AJ. Thereafter, on May 25, 1999, the agency

issued its FAD finding no discrimination. It is from this decision that

complainant now appeals.<3>

In its FAD, the agency concluded that complainant failed to establish a

prima facie case of race discrimination for the firefighter position.

On appeal, complainant contends that the agency engaged in systemic

discrimination against African Americans assigned to EMS. Complainant

also reiterates that the agency's EEO processing system was dysfunctional.

The agency requests that we affirm its FAD.

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). 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.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

In cases where the issue is non-selection, complainant may establish a

prima facie case of race discrimination by showing: (1) he is a member

of a protected class; (2) he was qualified for the position; (3) he was

not selected for the position; and (4) he was accorded less favorable

treatment from that given to persons otherwise similarly situated.

Williams v. Department of Education, EEOC Request No. 05970561 (August

6, 1998). Complainant may also set forth evidence of acts from which,

if otherwise unexplained, an inference of discrimination can be drawn.

Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

After a careful review of the record, the Commission finds that the

agency was correct in finding that complainant failed to establish

a prima facie case of race discrimination for the non-selection.

Specifically, the record reflects that complainant was not minimally

qualified for the position. In point of fact, the position required

a minimum of six months firefighting experience. Although complainant

alleged that other individuals with no firefighting experience had been

selected on prior occasions, the record evidence does not identify these

comparative employees. Furthermore, there is no record of a selection

being made for this position.

Based on the foregoing, we find that complainant did not show that the

agency discriminated against him on the basis of his race with respect

to the challenged selections. 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, we 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

December 21, 2001

__________________

Date

1 See Horton v. Department of Veterans Affairs, EEOC Appeal No. 01961514

(February 26, 1997); Rhodes v. Department of Veterans Affairs,

EEOC Appeal No. 01962212 (February 26, 1997); Wilson v. Department of

Veterans Affairs, EEOC Appeal No. 01962213 (February 26, 1997); Mitchell

v. Department of Veterans Affairs, EEOC Appeal No. 01962214 (February 26,

1997); Estus v. Department of Veterans Affairs, EEOC Appeal No. 01962215

(February 26, 1997); and, Abernathy v. Department of Veterans Affairs,

EEOC Appeal No. 01962216 (February 26, 1997).

2 Complainant timely appealed the dismissal. See Mitchell v. Department

of Veterans Affairs, EEOC Appeal No. 01994959.

3 The Commission addresses the remaining two non-selections in EEOC

Appeal No. 01A03562.