01984654
01-13-2000
Edward A. Powell, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Edward A. Powell, )
Complainant, )
) Appeal No. 01984654
v. ) Agency Nos. AR000980253;
) AR000980254
F. Whitten Peters, ) Hearing Nos. 360-96-8750X;
Acting Secretary, ) 360-96-8751X
Department of the Air Force, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final
decision (FAD) concerning his equal employment opportunity (EEO)
complaint of unlawful employment discrimination on the bases of race
(African-American), color (Black), sex (male), reprisal (prior EEO
activity), and age (53), in violation of 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.<1> Complainant filed a formal complaint (C1)
claiming that he was discriminated against on the above-stated bases when:
(1) in 1993 he was rated ineligible and not selected for the positions of
GS-335-9 Supervisory Computer Assistant (P1) and GS-1071-9/11 Television
Production Specialist (P2); (2) in July of 1993, he was not selected
for the position of GS-1712-12 Training Specialist (P3); and (3) he
was continuously harassed by management in Civilian Personnel Flight.
Complainant claims in his second formal complaint (C2) that he was
discriminated against on the bases of race, color, age and reprisal when:
(1) on October 19, 1994, he was rated ineligible for the position of
GS-0392-11 Telecommunication Specialist (P4); and (2) he was harassed
by employees of the External Recruitment Unit. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the Commission AFFIRMS the agency's FAD.<2>
The record reveals that during the relevant time, complainant was employed
as a WG-2606-10 Electronic Industrial Controls Specialist at the agency's
Lackland Air Force Base in San Antonio, Texas. Believing he was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed formal complaints on January 7, 1994 and December 22, 1994.
The complaints were then consolidated for purposes of investigation.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing on the consolidated complaints, the AJ
issued a Recommended Decision (RD) finding no discrimination.
Utilizing the analysis set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the AJ initially found that complainant established
prima facie cases of race, color, age and sex discrimination with
regard to the allegations made in C1 and C2, as the circumstances
of the agency's actions, if left unexplained, suggest discrimination.
The AJ then found that complainant failed to establish a prima facie case
of retaliation or harassment by members of Civilian Personnel Flight,
as there was no evidence that management knew of complainant's prior
EEO activity at the time of the actions alleged in C1. However, the
AJ found that complainant established a prima facie case of retaliation
with regard to being rated ineligible for P4, as the Staffing Specialist
(SS) testified that she was aware of complainant's prior EEO activity
when she rated him as ineligible for that position.
The AJ then found that the agency articulated legitimate,
nondiscriminatory reasons for the actions alleged in C1 and C2, namely,
that the agency based its findings of ineligibility for both P2 and P4
solely upon the application information provided by complainant, which
indicated that he lacked the requirements for the positions, but after
complainant's appeal of the ratings determinations, the SS considered
new information and rated complainant as eligible for both positions.
The AJ further found that regarding P1, the agency credibly stated that
complainant was rated as ineligible as he did not possess the requisite
experience needed for the position. Regarding the agency's nonselection
of complainant for the positions at issue, the AJ credited the agency's
articulated reason that the selection of the most qualified candidate had
been made by the time complainant's supplemental information was submitted
for P1. Similarly, for P2 and P3 the AJ credited the agency's reason that
complainant was not selected as the selectees had the highest ratings
of a three-person panel. The AJ also found that the agency produced
credible evidence that complainant was not harassed by employees of the
External Recruitment Unit.
The AJ then found that complainant did not establish that it was more
likely than not that the agency's articulated reasons were a pretext to
mask unlawful discrimination or retaliation. In reaching this conclusion,
the AJ found that despite complainant's claims that the position ratings
established that he was harassed by management in Civilian Personnel
Flight or the External Recruitment Unit, there was no evidence that
the agency's articulated reasons for the ratings were influenced by
discrimination. Complainant claimed that the agency's altering of
his rating for P2 and P4 from ineligible to eligible was evidence of
discriminatory animus. However, the AJ was persuaded that the agency's
willingness to ultimately rate complainant as eligible for several
positions reflected complainant's more complete transmission of his
qualifications for the positions rather than discrimination. In addition,
the AJ found that many of the positions at issue required experience which
complainant did not possess despite his educational achievements. The
agency's FAD implemented the AJ's RD. Complainant contends on appeal
that AJ's RD and the FAD were incorrect, and the agency requests that
we affirm its FAD should complainant's appeal be found to be timely.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent did
not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). After a careful review of the record,
the Commission finds that the AJ's RD summarized the relevant facts
and referenced the appropriate regulations, policies, and laws.
We discern no basis to disturb the AJ's RD. The Commission initially
agrees with the AJ's determination that the actions of the agency
as claimed by complainant in C1 and C2 were not sufficiently severe
or pervasive to constitute harassment. Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993). We further agree with the AJ's finding that
the agency articulated legitimate, nondiscriminatory reasons for its
actions regarding complainant being rated ineligible and not selected
for the positions at issue, and that there was insufficient evidence
to demonstrate that the agency's articulated reasons were a pretext for
discrimination. The record indicates that the AJ correctly found that
the agency established that complainant was ultimately rated as eligible
for P2 and P4, and was not selected for the positions at issue as the
selectees were rated as having better overall qualifications. An employer
has discretion to choose among equally qualified candidates, assuming
the decision is not based upon unlawful criteria, Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981), and we find that
complainant failed to establish that his qualifications were plainly
superior to those of the selectees. Schnake v. Dept. of Agriculture,
EEOC Appeal No. 01965915 (June 29, 1998). 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 agency's FAD.
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:
January 13, 2000
Date Carlton M. 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
Equal Employment Assistant 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.
2 The Commission notes the agency's contention that complainant's appeal
was untimely filed, as his appeal was filed more than thirty (30) days
after he is presumed to have received the Final Agency Decision (FAD).
The record reflects that complainant's counsel was disbarred following
the hearing, but there was no notice of this to the agency, and the
agency thus sent the FAD to counsel. While complainant's notice of
appeal was mailed more than 30 days after counsel's receipt of the FAD,
as there is no evidence in the record documenting if or when complainant
received a copy of the FAD, we will treat his appeal as timely.