01982862
12-21-1999
James W. Lampley, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
James W. Lampley, )
Complainant, )
) Appeal No. 01982862
v. ) Agency No. XL-97-031
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black), sex (male), age (51), and in reprisal for prior
protected activity in violation of Title VII of the Civil Rights Act of
1964, 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.<1>
Complainant alleges he was discriminated against when he was not selected
for the GS-12 Contract Administrator position. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the Commission affirms the FAD.
The record reveals that complainant, a GS-11 Contract Administrator,
applied and interviewed for the GS-12 position at the agency's facility
in Picatinny, New Jersey. When he was not selected for the position,
complainant sought EEO counseling and filed a complaint on May 12, 1997.
At the conclusion of the investigation, complainant requested that the
agency issue a final decision. Complainant now appeals from the agency's
finding of no discrimination. Complainant, while contending that he was
better qualified than the Selectee, accuses the Selecting Official and
Recommending Officials of preselection, collusion and failure to follow
agency guidelines. The agency requests that we affirm the FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979), 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 agrees with the agency that complainant failed to establish
either a prima facie case of sex discrimination or retaliation because the
selectee was male and because the connection between complainant's prior
protected activity and his non-selection was insufficient to support an
inference of retaliation. We also agree with the agency that complainant
established prima facie cases of race and age discrimination since the
selectee was White and though over forty years of age, eight years younger
than complainant. See O'Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308 (1996); Terrell v. Department of Housing and Urban Development,
EEOC Appeal No. 01961030 (October 25, 1996). The agency articulated
a legitimate, nondiscriminatory reason for not selecting complainant,
namely, that he was not the best qualified applicant.
The Commission finds that complainant failed to present sufficient
evidence that the agency's articulated reasons for its selection were a
pretext for discrimination. In reaching this conclusion, we note that of
the six applicants interviewed for the position, complainant was ranked
fifth by a panel of Recommending Officials comprised of one Black male,
one White male and one White female. The selection was ultimately
determined by the applicants' responses to questions posed to them by
the Selecting Official in the presence of the panel. The Recommending
Officials testified that they independently ranked the applicants and were
genuinely surprised that their rankings were in such accord. There is no
evidence to support complainant's accusations of collusion or improper
processing. The Selecting Official followed the panel's recommendation
and ultimately selected the third ranked applicant because the first
ranked applicant was disqualified and the second ranked applicant turned
down the offer. Neither the testimony of the Recommending Officials
or documentary evidence in the record supports complainant's contention
that his qualifications for position were so plainly superior to those
of the Selectees as to warrant a finding of pretext. See Patterson
v. Department of the Treasury, EEOC Request No. 05950156 (May 9, 1996).
Complainant also argues that the first ranked applicant was preselected
for the position. We note that while evidence of preselection may
operate to discredit the employer's explanation for its employment
decision, preselection per se does not constitute discrimination when
it is based on the qualifications of the preselected individual and not
on a prohibited basis. See McAllister v. United States Postal Service,
EEOC Request No. 05931038 (July 28, 1994). Complainant has failed to
proffer probative evidence demonstrating that the agency's selection was
based on a basis prohibited by Title VII or the ADEA. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 21, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the
EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints
pending at any stage in the administrative process. Consequently,
the Commission will apply the revised regulations found at
64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found
at the Commission's website at WWW.EEOC.GOV.