01983858
12-22-1999
Freddie J. Allen, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Freddie J. Allen, )
Complainant, )
) Appeal No. 01983858
v. ) Agency No. 96-1891
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race and color (Black) and age (DOB: 1/30/41) in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Complainant alleges he was discriminated against when he
was not selected for the position of Food Service Supervisor in November
1992. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission affirms the FAD.
The record reveals that during the relevant time, complainant was employed
as a Housekeeping Aide at the agency's Medical Center in Bay Pines,
Florida. Believing the agency discriminated against him as referenced
above, complainant sought EEO counseling and filed a complaint on October
23, 1995. At the conclusion of the investigation and after complainant
withdrew his request for a hearing before an EEOC Administrative Judge,
the agency issued a final decision finding no discrimination from which
he now appeals. Neither party submitted a statement in support of or
in response to the appeal.
After a careful review of the record, based on the standards set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253-256 (1981) and Loeb
v. Textron, 600 F.2d 1003 (1st Cir. 1979), the Commission agrees with
the agency that complainant established prima facie cases of race,
color and age discrimination because he applied for and was qualified
for the position but was not selected in favor of a candidate outside
of his protected classes. The Commission finds that complainant
failed to present evidence that the agency's articulated reasons for
its selection were a pretext for discrimination. In reaching this
conclusion, we note that one of the Selecting Officials stated that
complainant's then-supervisor had given him a poor recommendation,
essentially stating that he was �not supervisory material.� We also
note that complainant had no recent experience in the food service
industry and had no specific experience in the preparation of �modified
diets� for people with dietary restrictions. The Selectee, who was
already performing the position at another agency facility, came highly
recommended. There is no probative evidence in the record to support
complainant's contention that the agency's selection was motivated
by discriminatory animus towards complainant's race, color or age.
Therefore, after a careful review of the record, including evidence not
specifically addressed in this decision, we affirm the 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:
December 22, 1999
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.