01971587
06-09-1999
Harvey Harris, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Harvey Harris, )
Appellant, )
) Appeal No. 01971587
v. ) Agency No. 94-68322-021
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) 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.
Appellant alleges that he was discriminated against on the bases of
race (African American) and in reprisal for prior EEO activity when his
application for a GS-260-11 EEO Specialist position filed pursuant to
a Merit Promotion Announcement was not rated. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a WG-3359-11 Instrument Mechanic (Aircraft) at the agency's Naval
Aviation Depot in Pensacola, Florida. Believing he was discriminated
against as referenced above, appellant sought EEO counseling and
subsequently filed a complaint on April 28, 1994. At the conclusion
of the investigation, appellant initially requested a hearing before
an EEOC Administrative Judge but subsequently withdrew his request and
asked the agency to issue a final decision on the evidence of record.
The FAD concluded that appellant failed to prove, by a preponderance of
the evidence, that the agency's legitimate, nondiscriminatory explanation
for not rating appellant's application was a pretext for unlawful
discrimination. Specifically, due to the lack of highly qualified,
internal Department of Defense (DOD) applicants who responded to the
Merit Promotion Announcement, management decided to employ an alternative
recruiting method and advertised outside of the DOD (Open Competitive).
As a result and in accordance with the Merit Staffing Plan, applications
filed pursuant to the Merit Promotion Announcement were not rated. It is
from this decision appellant now appeals. Appellant did not submit a
statement in support of his appeal. The agency requests that we affirm
its FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981) and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission finds that appellant failed to establish a prima
facie case of race discrimination since applications from internal
applicants outside of appellant's protected class were also not rated.
The Commission further concludes that appellant failed to establish
a prima facie case of retaliation since there is no credible evidence
supporting a link between the agency's knowledge of appellant's prior EEO
activity and the decision to implement an Open Competitive recruitment
process.
Since there is no evidence to support a finding that, at the time he
expanded the recruitment process, the Deputy EEO Officer either knew the
names, races or prior EEO activities of those applicants who had applied
pursuant to the Merit Promotion Announcement, we find that appellant has
failed to establish a prima facie case of discrimination on any bases.
Consequently, the FAD requires no further review. Therefore, after
a careful review of the record, including arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
June 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations