John Sharpless, Jr., Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01a00090 (E.E.O.C. Mar. 24, 2000)

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01a00090

03-24-2000

John Sharpless, Jr., Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


John Sharpless, Jr., )

Complainant, )

) Appeal No. 01A00090

v. ) Agency No. 95-3278R

) Hearing No. 170-97-8458X

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination on the bases of race (African-American)

and color (Black) in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405). For the following reasons, the Commission affirms

the agency's final decision.

ISSUE PRESENTED

The issue on appeal is whether the FAD properly found that complainant

failed to show by preponderant evidence that the agency discriminated

against him based on race and color when he was not selected for the

position of Supervisory Police Officer in June 1995.

BACKGROUND

The record reveals that complainant, a Sergeant at the agency's U.S. Mint

in Philadelphia, PA, filed a formal EEO complaint with the agency on

September 18, 1995, alleging that the agency had discriminated against

him as referenced above. The complaint was dismissed as untimely by the

agency pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter cited as 29 C.F.R. � 1614.107(a)(2)). Complainant appealed

the decision to the Commission. The Commission vacated the agency's

dismissal and remanded the complaint for further processing by the agency.

Sharpless, Jr. v. Department of the Treasury, EEOC Appeal No. 01961095

(November 12, 1996). The agency filed a request for reconsideration

which the Commission denied but opened the matter on our own motion.

The Commission modified the previous decision and ordered the agency

to process complainant's complaint. Sharpless, Jr. v. Department of

the Treasury, EEOC Request No. 05970236 (March 27, 1997). Accordingly,

the agency accepted the complaint for investigation.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an

EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a

decision finding no discrimination. The AJ concluded that complainant

established prima facie cases of race and color discrimination. Then,

the AJ examined the agency's reasons for not selecting complainant,

namely that the selectee had better communication skills and supervisory

skills; that the selectee had performed better than complainant in the

acting Supervisory Police Officer capacity; that selectee had volunteered

for more special assignments than complainant; and that complainant's

application for the position was sloppy and incomplete as compared to the

selectee's application. Finding that the agency articulated legitimate,

nondiscriminatory reasons for its action, the AJ turned to examine

complainant's argument that these reasons were pretext for discrimination.

The AJ concluded that complainant failed to establish that more likely

than not, the agency's reasons were a pretext for discrimination.

In reaching her conclusion, the AJ found that complainant failed to show

that he was far superior than the selectee; that the agency ignored the

seniority system of promotion which complainant alleged was the normal

method of selection, because the senior candidate was Black; and that

the agency preselected the selectee in a discriminatory manner.

The agency's final decision implemented the AJ's findings. On appeal,

complainant contends that the AJ relied on false testimony offered by the

selecting official and the AJ improperly denied complainant's witnesses

from testifying.

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as �such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.�

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the AJ's

decision summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We note that complainant failed to

present evidence that any of the agency's actions were motivated by

discriminatory animus toward complainant's race and color. We discern

no basis to disturb the AJ's decision.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, we AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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:

March 24, 2000

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 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.