01994494
02-14-2002
Edward S. Houchin, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Edward S. Houchin v. Department of Housing and Urban Development
01994494
February 14, 2002
.
Edward S. Houchin,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01994494
Agency Nos. DE-95-03 and DE-96-01
Hearing Nos. 320-96-8424X and 320-97-8448X
DECISION
INTRODUCTION
Complainant timely initiated this appeal from the agency's final decision
concerning his equal employment opportunity (EEO) 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges in the first of his two
complaints that he was discriminated against by the agency on the bases
of his race (White), sex (male), and national origin (non-Hispanic)
when, in September, 1994, he applied but was not selected for twelve
supervisory positions announced at the GS-13/14 level. In his second
complaint, complainant alleges the agency discriminated against him on
the aforementioned bases, as well as his color (white), disability (ankle
injury and neurological damage to left side), and in retaliation for his
prior EEO activity, when, in September 1995, he was not selected for an
open Equal Opportunity Specialist, GS-13, position. For the following
reasons, the agency's FAD finding no discrimination is AFFIRMED.
BACKGROUND
The record reveals the following information pertinent to this appeal.
At all times relevant to the agency actions at issue, complainant was
employed as an Equal Opportunity Specialist, GS-12, in the agency's
Denver, Colorado office. Believing he had been discriminated against as
described above, complainant engaged in EEO counseling and subsequently
filed formal EEO complaints with the agency. At the conclusion of
the agency's investigation into his complaints, complainant received
a copy of the investigative reports and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ found that complainant established a prima facie case of
discrimination based upon his race and sex for each complaint because
he applied, and was qualified, for the positions at issue in each
complaint; he was not selected for any of the positions; and the
positions were given to persons not of his race and/or sex.<1> The AJ
also found that complainant had established, in reference to his second
complaint, a prima facie case of retaliation for his prior EEO activity,
as the selecting official for that position was aware of complainant's
prior EEO activity and the closeness in time of that EEO activity and
the nonselection decision was sufficient to show a causal connection
between complainant's activity and the nonselection. However, the AJ
further found that complainant had not established a prima facie case
of disability discrimination, as complainant had not established that
he was a qualified individual with a disability.
The AJ also found that the agency had articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that, as to
the first complaint, the agency selection officials believed that the
twelve selectees were better qualified than complainant. As to the
second complaint, the AJ found that the selectee had performed better
in her interview than complainant and the other candidates, and that
the selecting official believed complainant had problems with written
communication.
The AJ then examined complainant's rebuttal arguments, and found that
he did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination and retaliation.
The AJ then concluded that complainant had failed to establish that the
agency had discriminated against him on account of his race, sex, or
disability, or in retaliation for his prior EEO activity. Subsequently,
the agency issued its FAD, which implemented the AJ's decision in full.
This appeal followed.
On appeal, complainant restates arguments previously made at the
hearing.<2> In response, the agency restates the position it took in
its FAD, and requests that we disregard the evidence complainant proffers
for the first time on appeal and affirm the FAD.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 Bd., 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
As a general matter, in the absence of direct evidence of discrimination,
claims of discrimination alleging disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this analytical framework,
the complainant must first 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 reason was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). After
the agency has offered the reason for its action, the burden returns to
the complainant to demonstrate, by a preponderance of the evidence, that
the agency's reason was pretextual�that is, it was not the true reason,
or the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253. However, the ultimate burden of persuading the trier
of fact that the agency intentionally discriminated against complainant
remains at all times with complainant. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253).
Even accepting the AJ's finding that complainant established prima facie
cases of discrimination on the bases of race, sex, and retaliation,
and assuming for the sake of argument that he also established a prima
facie case based upon his color, national origin, and disability, we
conclude that the AJ's ultimate finding that complainant failed to prove
discrimination was supported by such relevant evidence in the record as
a reasonable mind might accept as adequate to support the conclusion.
Where the agency has articulated a legitimate, nondiscriminatory
reason for the personnel action at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis.
Chouteau v. United States Postal Serv., EEOC Appeal No. 01973853 (Mar. 10,
2000). We agree with the AJ that the agency met its burden by providing
evidence supporting its assertion that the selection decisions regarding
complainant were based upon his qualifications and interview performance
compared to those of the eventual selectees.<3> Accordingly, we next
examine whether complainant has presented sufficient evidence to prove
the agency's reasons are merely pretext for unlawful discrimination.
The AJ found that complainant had argued the following: that there was
a statistical disparity between the number of white males occupying
positions within the agency as opposed to their representation in the
general population nationwide; that for the years 1993 and 1994 there
were statistical disparities in the promotion rate for white males in
comparison to their representation agency wide; and that he was more
qualified than five of the twelve selectees, as well as the selectee
for the Equal Opportunity Specialist, GS-13, position.
The AJ found these arguments unpersuasive, stating that despite the
statistical evidence presented by complainant, he did not show that there
was any agency policy or intent to discriminate against white males in
hiring or promotion, and that during part of the period in question, the
number of white males in management increased. The AJ also found that the
record supported the agency's contentions that the selectees were more
qualified than complainant, including evidence that complainant was not
qualified for several of the positions at issue because they were hired
at the GS-14 level and complainant was not eligible for a GS-14 position.
After a full examination of the evidence of record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, the Commission
finds that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence, other than that establishing his
prima facie case, that any of the agency's actions were in retaliation
for complainant's prior EEO activity or were motivated by discriminatory
animus toward his race, color, sex, national origin, or disability status.
We discern no basis to disturb the AJ's decision. Therefore, we AFFIRM
the agency's 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
February 14, 2002
Date
1 While the AJ acknowledged at the beginning of his decision that
complainant had also alleged in his complaints discrimination based upon
his national origin, the AJ inexplicably made no further mention of this
particular claimed basis of discrimination. In addition, the AJ made
no mention at all of complainant's claim of discrimination based upon
his color.
2 Complaint also attempts to present on appeal what he claims is
new evidence of the agency's engaging in a pattern and practice of
discrimination against him as alleged above. This new evidence consists
in large part of complainant's nonselection for several other agency
positions in 1999 and 2000, which he appears to have subsequently
complained of through the agency's EEO process. He also presents
statistical evidence purported to pertain to these 1999 and 2000
nonselections. As a general rule, no new evidence will be considered
on appeal unless there is an affirmative showing that the evidence was
not reasonably available prior to or during the investigation or during
the hearing process. See EEOC Management Directive 110, chapter 9,
p.15 (Nov. 9, 1999). As the evidence relates to matters which occurred
subsequent to the complaints at issue in this appeal, and there is no
indication that those subsequent matters have been presented to the
Commission for review, we decline to consider the proffered evidence in
our review of the issues before us on appeal.
3 Complainant was interviewed for the Equal Opportunity Specialist,
GS-13, position, but not the twelve supervisory, GS-13/14, positions.