01a53648r
08-17-2005
Gerard M. Pierre, Complainant, v. Dan G. Blair, Acting Director, Office of Personnel Management, Agency.
Gerard M. Pierre v. Office of Personnel Management
01A53648
August 17, 2005
.
Gerard M. Pierre,
Complainant,
v.
Dan G. Blair,
Acting Director,
Office of Personnel Management,
Agency.
Appeal No. 01A53648
Agency No. 04-10
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. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time period, complainant
worked in the private sector and was an applicant for employment with
the US Customs Service. In order to obtain employment with the Customs
Service, complainant took the Customs Broker License Examination on
October 7, 2003, which was administered by the Office of Personnel
Management (OPM). Complainant failed the examination. In a formal
complaint dated January 23, 2004, complainant alleged that the agency
subjected him to discrimination on the bases of race (African-American)
and sex (male) when on October 7, 2003, an OPM Test Administrator
interrupted him and broke his concentration while he was taking the
Customs Broker License Examination.
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 complainant proved a prima facie
case of race discrimination, but not sex discrimination. The FAD further
found that the agency provided legitimate, non-discriminatory reasons
for its actions that were not persuasively rebutted by complainant as
pretext for discrimination.
On appeal, complainant contends that discriminatory animus is proven by
the fact that he was the only African-American taking the examination and
was interrupted, and the test administrator had a hostile tone toward
him and asked him if he was �Mr. Rodriguez.� The agency requests that
we affirm its FAD.
Assuming arguendo that complainant established prima facie cases of sex
and race discrimination,<0>
we find that the agency offered legitimate, non-discriminatory reasons for
its actions. Specifically, the test administrator stated that although
she initially permitted test-takers to use reference materials that they
had brought into the examination, she feared that the examination would
be voided due to the improper use of reference materials. She stated that
she observed complainant using handwritten notes that were very different
from the �official� notes others were using during the examination
and asked complainant about the materials he was using. She further
stated that she asked complainant if he was �Mr. Rodriguez� because
someone with that name had not signed the test roster and complainant's
behavior led her to suspect he may have not signed the roster. We find
that complainant failed to provide any persuasive evidence of pretext
to rebut the agency's stated reasons. His subjective belief, however
genuine, does not constitute evidence of pretext or provide a basis for
remedial relief. See Mroz v. Dep't of Defense, EEOC Appeal No.01A33187
(Jan. 23, 2004).
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
__August 17, 2005________________
Date
0 1We note that the FAD erred in finding that complainant failed
to establish a prima facie case of sex discrimination because equal
numbers of male and female individuals were not interrupted while taking
the test. The proper inquiry is whether any individual not within
complainant's protected class was subjected to more favorable treatment.