01981458
07-19-2001
Eugene Wilson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Eugene Wilson v. Department of Defense (Defense Logistics Agency)
01981458
July 19, 2001
.
Eugene Wilson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01981458
Agency No. XL-96-039
DECISION
Complainant timely initiated an 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 (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 race (Black) when:
(1) He was not selected for the GS-1101-14, Contract Technical Assessment
Supervisor position, as advertised under Job Opportunity
Announcement Number 28-96; and
(2) He was not afforded an opportunity to serve on a 30-day temporary
promotion as a GS- 1101-14, Contract Technical Assessment
Supervisor.
The record reveals that during the relevant time, complainant was
employed as a Chief, Production, Manufacturing and Software Assurance
Team, GS-1910-13 at the agency's Pittsfield, Massachusetts facility.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on April 22, 1996.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that the record evidence did not
establish that the legitimate, nondiscriminatory reasons articulated by
the agency for its actions were a pretext to mask unlawful discrimination.
On appeal, complainant contends that the selecting official (SO) used the
interview process to impermissibly discriminate against him in choosing
the selectee (ST) for the permanent position. In regard to the temporary
30-day promotion, complainant points out as evidence of discrimination
that White employees were given an opportunity to serve in the vacant
position, the ST being given the opportunity to serve an additional two
weeks, while complainant was not given an opportunity to serve at all.
The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the Commission agrees with the agency that while
complainant established a prima facie case of race discrimination in
regard to the permanent position, complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that while the complainant ranked just behind the ST in technical
skills, both being regarded as highly qualified, he did not do nearly
as well during the interview. In this regard, the SO explained:
I was not only looking for people with good technical background; I
was looking for someone with good management potential, good leadership
qualities with a management orientation and the ability to be dynamic
.... The interviews were to be used as a vehicle for the candidates to
demonstrate that capability through the communication process.
After a careful review of the record, we are not persuaded by
complainant's contention that the interview process was used as a cover
against him, to mask discriminatory motives that are not susceptible of
objective evaluation. In this regard, we note that complainant was ranked
below the ST overall and did not show that his overall qualifications
were so plainly superior to those of the ST's qualifications that a
finding of pretext is warranted. See Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981).
As to complainant's not being able to serve a 30-day detail, we note that
all the eligible candidates were assigned in the order of seniority,
that the fourth employee in rank of seniority was only able to serve
two weeks before the position became permanently filled. Therefore,
even if the ST had served only 30 days instead of an extra two weeks,
complainant as the fifth candidate would still not have been able to
serve in the position before it was permanently filled. Complainant has
not been able to come forward with any evidence to demonstrate that he
was deprived of a 30-day detail for reasons of prejudice, rather than
of non-discriminatory scheduling in order of seniority.
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
July 19, 2001
Date