Julius E. Wright, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01a03244 (E.E.O.C. Jul. 27, 2000)

01a03244

07-27-2000

Julius E. Wright, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Julius E. Wright v. Department of Health and Human Services

01A03244

July 27, 2000

.

Julius E. Wright,

Complainant,

v.

Donna E. Shalala,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01A03244

Agency No. FDA-N-010-97

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. <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). Complainant alleged that he was discriminated against on

the basis of race (Black) when:

(1) in June of 1993, complainant was not referred to the selecting

official and subsequently not selected for the position of Quality

Assurance Specialist, GS-1910-09, under Vacancy Announcement Number

DS-3-3419, which was opened on June 7, 1993, and closed on June 11,

1993;

he was informed by a �government employee� that the duties of the

Personnel Officer at the National Center for Toxicological Research

(NCTR) include classifying positions and rating applicants and that

therefore, he believes that personnel management at NCTR and Quality

Assurance at NCTR were active in the selection and rating process

referenced above.

The record reveals that during the relevant time, complainant was employed

as a Diet Technician in the Diet Preparation Division of Bionetics

Corporation and worked as a contract employee at NCTR. On June 10, 1993,

complainant applied for the Quality Assurance Specialist position with

the agency facility in Jefferson, Arkansas. Complainant was not referred

to the selecting official by the Office of Personnel Management (OPM)

however, later, an unidentified government official told complainant

that the selecting management official was active in the selection

and rating process. Believing he was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on October 17, 1996. 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. When complainant failed to respond within the time period

specified in 29 C.F.R. � 1614, the agency issued a final decision.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of discrimination. The FAD found that complainant

failed to demonstrate that he was qualified for the position to the

specifics of the vacancy announcement. Further, the FAD noted that

the NCTR Personnel Management Specialist averred that all applicants

for the vacancy in question sent their applications to OPM and the only

involvement the agency had in the referring process was to supply OPM

with the job description and rating plan for the position.

On appeal, complainant contends that he was qualified for the position

in question and the selected individual was groomed for the position.

The agency requests that we affirm its FAD.

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, s/he must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency

has met its burden, the complainant bears the ultimate responsibility

to persuade the fact finder by a preponderance of the evidence that

the agency acted on the basis of a prohibited reason. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. U.S. Postal

Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, in response to complainant's claims of discrimination, the agency

presented evidence that it did not determine that complainant was not

qualified for the position in question. The agency officials averred

that the agency merely provided OPM with the job description and rating

plan. Furthermore, the agency never received applications; they were

sent directly to OPM. The agency selected the individual based upon

OPM's referrals. Accordingly, we find that the agency has articulated

a legitimate, nondiscriminatory reason for its action. The Commission

further finds that complainant failed to present evidence that more

likely than not, the agency's articulated reasons for its actions were

a pretext for discrimination.

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

contentions on appeal and the agency's response, we AFFIRM the FAD.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

July 27, 2000

__________________

Date

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.