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