Errol K. Cox, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01974881 (E.E.O.C. Jan. 29, 1999)

01974881

01-29-1999

Errol K. Cox, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Errol K. Cox v. Department of the Army

01974881

January 29, 1999

Errol K. Cox, ) Appeal No. 01974881

Appellant, ) Agency No. BEHTF09506F0570

v. ) Hearing No. 100-96-7265X

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

DECISION

The Commission accepts appellant's timely appeal from a final agency

decision ("FAD") concerning his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq. See EEOC Order No. 960.001.

In his complaint, appellant alleged that he was discriminated against

based on his race (African-American) when he was not selected for the

position of Supervisory Information Management Specialist, GS-15.

Appellant, an Information Systems Management Specialist, GS-14, timely

sought EEO counseling and filed his instant EEO complaint, which

was accepted and investigated by the agency. Thereafter, appellant

timely requested a hearing before an EEOC Administrative Judge ("AJ").

After a hearing, the AJ issued a recommended decision ("RD") finding

no discrimination. The agency adopted the RD in its FAD. On appeal,

appellant primarily presents the same arguments made before the AJ and

contends that the AJ erred in not finding discrimination.

Appellant applied and was deemed by a ranking panel to be among the ten

most qualified candidates for the position. Accordingly, appellant was

interviewed by a three-person interview panel. The interview panelists

rated each applicant on a confidential evaluation form, which was not

shared among themselves, so that none of the panelists knew how the

others rated a candidate. The selecting official ultimately selected

the candidate (Caucasian) who had been ranked first by all three members

of the interview panel.

While the AJ found that appellant established a prima facie case of

discrimination, the AJ was not persuaded that he established that the

legitimate nondiscriminatory reasons articulated for his nonselection were

a pretext for discrimination. Appellant attempted to establish pretext

by arguing that his qualifications exceeded those of the selectee, and

noting that all of the ranking and interview panelists were Caucasian.

In addition, appellant felt that the interview panelists inadequately

justified their reasons for deeming that the selectee's answers to

their questions were clearer, more coherent and more far reaching than

his answers. The position in question was created as a combination of

two functions, information technology and visual information systems.

Appellant, whose strength and experience lay in information technology,

also felt that the interview questions were skewed more toward the

area of visual information systems and that more weight should have

been given to the information technology component of the position.

However, the AJ reviewed the evidence and found that appellant failed

to establish pretext.

After a thorough review of the record, including argument and evidence

not specifically discussed herein, the Commission finds that the RD

adequately set forth the relevant facts and analyzed the appropriate

regulations, policies and laws. As for appellant's contentions on

appeal, the Commission generally will not disturb the credibility

determination of an AJ when, as here, such determinations are based on

the AJ's observations of the demeanor of the witnesses. Esquer v. United

States Postal Service, EEOC Request No. 05960096 (September 6, 1996);

Willis v. Department of the Treasury, EEOC Request No. 05900589 (July

26, 1990). Accordingly, the Commission discerns no basis to disturb

the AJ's finding that appellant failed to establish discrimination.

Therefore, it is the decision of the Commission to AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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 29, 1999

________________ ___________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations