01974570
09-03-1999
James F. Johnson, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency,
James F. Johnson, )
Appellant, )
) Appeal No. 01974570
v. ) Agency No. 9510F0370
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency, )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted
by the Commission in accordance with the provisions of EEOC Order
No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
appellant based on race/color (black) when it canceled the vacancy
announcement for the position of Supervisory Logistics Management
Specialist, GS-346-14.
BACKGROUND
Appellant filed a formal complaint in August 1995 in which he raised
the issue identified above. Following an investigation, appellant did
not request an administrative hearing and the agency thereafter issued a
final decision in April 1997 finding no discrimination. It is from this
decision that appellant now appeals.
During the period in question, appellant was employed as a Supervisor,
Logistics Management, at the agency's facility in Warren, Michigan.
In late 1994, appellant applied for the position of Supervisory Logistics
Management Specialist, GS-346-14 (the Position), which was located at
the Aviation Center at Fort Rucker, Alabama. Appellant, along with 41
other applicants, was placed on a referral list which was forwarded to the
Director of Logistics (the Responsible Official, RO). The RO testified
that she was looking for a candidate who was an aircraft specialist,
but noted that, when she checked the backgrounds of the 42 individuals
on the referral list, none of them possessed experience in the area
of aircraft maintenance. The RO thereafter sought the advice of the
personnel office on how to proceed and was informed that the vacancy could
be re-advertised as a position requiring aircraft maintenance experience.
At that point, the vacancy for the Position was canceled and re-advertised
as a Supervisory Equipment Specialist position. Appellant did not apply
for that position. The record reveals that, due to budgetary cutbacks,
the second position was canceled and the vacancy was turned into a
military slot.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that the
legitimate reason articulated by the agency was not its true reason, but
was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). This analysis is equally applicable to claims brought
under the ADEA. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
The Commission is not persuaded that appellant has established a prima
facie case of race or color discrimination. Specifically, to the extent
every applicant on the referral list was affected in the same manner
as appellant, he has not established that he was accorded treatment
different than that received by a similarly situated nonmember of his
protected groups.<0> Assuming appellant could make such a showing, we
find that the agency articulated a legitimate, nondiscriminatory reason
for the cancellation of the Position, i.e., that none of the applicants
had aircraft maintenance experience. See Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 254 (1981).
At this point, appellant bears the burden of establishing that the
agency's articulated reason is a mere pretext for discrimination.
Appellant can do this either directly, by showing that a discrimi-natory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
Id. at 519 (emphasis in original).
We find appellant has not established pretext. Appellant has made several
contentions in support of his position, one being that, insofar as he had
20 years of Air Force logistics experience, the RO should have concluded
that he had the requisite aircraft maintenance experience. It is not
apparent to the Commission, however, that the two things are tantamount
to one another. Moreover, it is not readily apparent from appellant's
application that he possessed the experience the RO was seeking. Finally,
we note that, even if appellant did possess the experience in question,
the RO testified that she was not aware of the race or color of any of
the applicants on the referral list. Accordingly, we find appellant
has not established that he was discriminated against based on either
race or color.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against him as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
09-03-99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations 01 Comparative evidence is only
one method of establishing a prima facie case, and there are
other ways of making such a showing. See O'Connor v. Consolidated
Coin Caters Corp., 517 U.S. 308 (1996); Enforcement Guidance on
O'Connor v. Consolidated Coin Caters Corp., EEOC Notice 915.002
(September 18, 1996). In this case, however, appellant has
offered insufficient evidence, comparative or otherwise, to
establish a prima facie case.