James F. Johnson, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency,

Equal Employment Opportunity CommissionSep 3, 1999
01974570 (E.E.O.C. Sep. 3, 1999)

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.