James E. Fletcher, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 5, 2009
0120090399 (E.E.O.C. Feb. 5, 2009)

0120090399

02-05-2009

James E. Fletcher, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


James E. Fletcher,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120090399

Agency No. ARREDSTON07FEB00854

Hearing No. 420200800002X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's October 9, 2008 final order concerning his equal

employment opportunity (EEO) complaint alleging 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. Complainant alleged that the agency

discriminated against him on the bases of race (African American) and sex

(male) when, on January 11, 2007, he was not given an equal opportunity

to compete for a Supervisory Contract Specialist position, NH-1102-IV,

under Army Vacancy Announcement SCBK06375740.

An EEOC Administrative Judge (AJ) issued a decision without a hearing,

finding that complainant failed to establish by a preponderance of the

evidence that discrimination had occurred. The AJ found that the agency

articulated legitimate, nondiscriminatory reasons for its actions;

specifically, complainant was not rated as highly as other applicants,

and therefore was not chosen for an interview. The agency asserted

that complainant did not have the depth of experience and leadership

abilities comparable to the five applicants selected for an interview,

resulting in complainant receiving a lower rating. Further, the AJ found

that complainant failed to establish that the agency's articulated reason

was a pretext for discrimination. Complainant alleged that the selectee

was pre-chosen because of her friendship with the selecting official;

that the selecting official failed to follow agency procedures; and that

the selecting official put more emphasis on leadership abilities in the

selection plan in order to favor the selectee. The AJ found that even if

favoritism or pre-selection occurred, there is nothing in the record to

suggest that the selecting official's decision was based on complainant's

race or sex. The AJ further found that the record did not establish that

complainant's qualifications were observably superior to those of the

selectee. The agency adopted the AJ's findings in its final decision.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final order,

because the Administrative Judge's issuance of a decision without a

hearing was appropriate,1 and a preponderance of the record evidence

does not establish that discrimination occurred as alleged. 2

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court

that the Court appoint an attorney to represent you and that the Court

also 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 with the Court 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

February 5, 2009

Date

1 We find that the issuance of a decision without a hearing was

appropriate, given that the record has been adequately developed;

complainant was given notice of the agency's motion to issue a decision

without a hearing; he was given an opportunity to respond to the motion;

he was given a comprehensive statement of undisputed facts; and he was

afforded the opportunity to engage in discovery.

2 We agree with the AJ that employment decisions based favoritism and/or

friendship are not in violation of Title VII so long as they are not also

premised on some basis which is unlawful under Title VII. See Kelley

v. Department of Veterans Affairs, EEOC Appeal No. 0120070524 (December

14, 2007) (citing Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th

Cir. 1986)) (pre-selection, unless based on unlawful discrimination,

is not prohibited).

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0120090399

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120090399