01a44294_r
04-06-2005
Herman Moore, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Herman Moore v. Department of Veterans Affairs
01A44294
April 6, 2005
.
Herman Moore,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44294
Agency No. 200M-01-101645
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
On August 1, 2001, complainant contacted an EEO Counselor claiming that he
was subjected to discrimination on the bases of race (African-American),
sex (male), and age. Informal efforts to resolve complainant's concerns
were unsuccessful.
On February 12, 2002, complainant filed the instant complaint. Therein,
complainant claimed that he was subjected to unlawful discrimination
when:
Complainant was not referred and subsequently, on or about August 29,
2001, complainant received notice that he was not selected for the
position of Supervisory Medical Administrative Specialist;
On or about August 28, 2001, complainant received written notice that
he was not selected for the position of Patient Services Assistant;
On or about September 22, 2001, management discriminated against
complainant regarding duties hours and the denial of complainant's verbal
request to work overtime;
From September 22, 2001 and on a continuing basis, management
discriminated against complainant with regard to assignment of duties
since complainant has been performing higher grade duties without
appropriate compensation. Complainant claimed that his position should
be upgraded because he is performing duties of Health Benefits Advisor
and Patient Services Assistant.
Following an investigation, the agency notified complainant of the right
to either request a hearing before an Administrative Judge (AJ), or an
immediate final agency decision. Complainant did not respond to the
notice, and consequently, the agency issued a final decision on December
12, 2002, finding no discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Concerning claim (1), (complainant was not referred for the position of
Supervisory Medical Administrative Specialist), the agency determined that
the selecting panel for the subject position did not refer complainant
because the scoring criteria for the position was based on experience
documented in KSAs [knowledge, skills, and abilities], and that
complainant failed to submit the required KSAs. The agency noted that
the selectee submitted extremely detailed KSAs while the documentation
that complainant submitted did not address the required KSAs.
Concerning claim (2), (complainant was not selected for the position of
Patient Services Assistant), the agency determined that the selecting
panel used a numerical score to rate the applicants and that complainant
scored significantly lower than the selectee. The agency determined
that the selectee received the highest score from all the applicants
and was chosen based on her knowledge and because she had worked in the
specific area for most of her thirty years with the agency. The agency
also asserted that one of the raters stated that complainant was not
�very informative� in his interview.
Concerning claim (3), the agency stated that complainant was denied
overtime because complainant's job did not warrant overtime. The agency
stated that another employee was provided with overtime on duties that
�no one else does,� and that complainant was not qualified to perform
those duties.
Concerning claim (4), the agency acknowledged that complainant's
duties overlap with other positions; however, the agency determined
that complainant's position lacked the authority of a patient service
advisor. In his affidavit, a named management official stated that
patient service advisors have the authority to provide transportation
and other benefits according to the patient needs without further
authorization, while complainant's position lack this authority. The
agency also indicated that complainant's job description was submitted
to be evaluated for an upgrade but it was denied.
Finally, complainant stated in his affidavit that the agency's actions
concerning his non-selections, denial of overtime, and failure to upgrade
his job, �may be not racial and may not be sexual.� Complainant also
indicated that he does not think that two named management officials
�are racist now, the only reason I say is because that's the only way I
can get a case open.� Complainant further stated that: �I file a case
the way I needed to file it. As far as race and all that stuff, I am
not a very likable person. I don't know if it is the race or something
else. I do think I am being discriminated because of my abilities and
stuff to perform certain jobs.�
Complainant has not shown that management's articulated reasons for the
above actions are pretextual.
After a review of the record in its entirety, including considerations
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
April 6, 2005
__________________
Date