01a14964
10-18-2002
Jerry L. Feagin, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Jerry L. Feagin v. Department of Veterans Affairs
01A14964
10/18/02
.
Jerry L. Feagin,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A14964
Agency No. 200I-2461
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was an
applicant for employment at the agency's Birmingham, Alabama facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on June 13, 2000, alleging that he was discriminated against on
the bases of race (African-American), sex (male), and disability (right
hand injury) when he was not hired for the position of Dental Hygienist.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, but later withdrew his request and asked
that the agency issue a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of race and sex discrimination because the selectee for the
position was outside of his protected classes. However, the agency also
determined that complainant failed to establish a prima facie case of
disability discrimination because he failed to prove that his right hand
injury substantially limited a major life activity. In that regard,
the agency noted that complainant himself could not identify a major
life activity that was substantially limited by his hand injury.
The agency also determined that it articulated legitimate,
nondiscriminatory reasons for its actions, namely, the Selecting Official
testified that he chose the selectee because of her twenty years of
experience as a dental hygienist. Additionally, the Selecting Official
noted he chose the selectee for the position because he was familiar with
the selectee's work, and found her to be the most qualified. The agency
also found complainant failed to establish that the agency's reasons
for its actions were a pretext for discrimination.
On appeal, complainant contends that the agency failed to interview
two witnesses. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and Prewitt v. United States Postal Service, 662
F.2d 292, 310 (5th Cir. 1981), the Commission agrees with the agency that
complainant established a prima facie case of race and sex discrimination.
However, assuming arguendo, that complainant is an individual with a
disability, we find he failed to present evidence that more likely
than not, the agency's articulated reasons for its actions were a
pretext for discrimination. In reaching this conclusion, we note
that complainant failed to establish that the Selecting Official was
aware of complainant's race or disability. Furthermore, complainant
failed to present any evidence that the Selecting Official harbored
a discriminatory motive against complainant because of his sex, race
or alleged disability. Rather, complainant's argument surrounds his
allegation that he should have been selected for the position because
of his veteran's preference rating. Complainant failed to dispute the
agency's reasons for choosing the selectee; rather he concedes that he and
the selectee were equally qualified. As for complainant's contentions
on appeal, we note the record establishes that the Investigator made
repeated attempts to interview complainant's witnesses. However, they
failed to make themselves available.
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 (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
10/18/02
Date