Gerard M. Pierre, Complainant,v.Dan G. Blair, Acting Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionAug 17, 2005
01a53648r (E.E.O.C. Aug. 17, 2005)

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.