01986914
03-08-2000
Larry L. Griffis, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Larry L. Griffis v. Department of Veterans Affairs
01986914
March 8, 2000
Larry L. Griffis, )
Complainant, )
)
v. ) Appeal No. 01986914
) Agency No. 96-0643
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
INTRODUCTION
On September 18, 1998, complainant filed a timely appeal with the
Commission from a final agency decision (FAD) pertaining to his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The
Commission accepts the appeal in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein whether complainant has established, by a
preponderance of the evidence, that the agency discriminated against him
on the basis of sex (male) when on September 18, 1995 he was not promoted
to the position of Medical Technologist/Ancillary Test Coordinator
(GS-11).
BACKGROUND
The record reveals that during the relevant time, complainant
was employed as a Supervisory Medical Technologist (GS-10) in the
Chemical/Urinanalysis Department, at the VA Medical Center (VAMC) in
Lake City, Florida. Complainant alleged that he was passed over for
a promotion. The promotion was given to a "lower grade female with no
supervisory experience and with less years of service." Believing he
was a victim of sex discrimination, complainant sought EEO counseling
on September 29, 1995. Subsequently, on November 7, 1995, he filed
a formal complaint. Following an investigation of the complaint,
complainant requested a hearing, but later withdrew it. Thereafter,
the file was forwarded to the agency for the issuance of a FAD.
On August 20, 1998, the agency issued a FAD finding that complainant
had failed to prove discrimination. Specifically, the agency concluded
that complainant did establish a prima facie case of sex discrimination
when he demonstrated that he was qualified and applied for a vacancy,
was not selected, and an employee not in his protected class was chosen
instead. The FAD indicated that the agency presented a legitimate,
non-discriminatory reason for its selection. The agency determined
that the newly created position would rely heavily on teaching and
communication skills, and less on traditional laboratory skills.
The agency further determined that the selectee was chosen because of
her extensive teaching experience that included thirty years as a medical
technologist, and her ability to work well with the night shift nurses.
It was noted, however, that complainant had had problems interacting
with the female laboratory employees. Moreover, the agency determined
that complainant failed to show that the agency's articulated reason
were pretext. Accordingly, the FAD found no discrimination based on sex.
On appeal, complainant argues that the selectee did not have "more years
of service". He notes his teaching experience with the U.S. Army and
with Lake City Community College, which he contends was "common knowledge"
to the Selecting Official (SO).<2>
ANALYSIS AND FINDINGS
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, 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.
See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. See Texas Dep't 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. See St. Mary's Honor
Cen. 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. See U.S. Postal
Service Board 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 9, 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
argued that the selectee was the best candidate for the position.
According to the SO, the most important skills for the position
included: the ability to work well with the nursing staff, oversee
quality assurance, and work with patients in teaching them how to
do testing at home; that although complainant was qualified for the
vacancy and was one of three names given to the selecting official,
out of ten applicants, the selectee was viewed as the better candidate;
and that the selectee was chosen based on her ten years of teaching
experience, thirty plus years of experience as a medical technologist,
advanced degree, and experience working with the evening shift nurses.
The Commission finds that the record supports the agency's argument.
Therefore, we find that the agency has articulated a legitimate,
nondiscriminatory reason for its action.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's reason was pretext for discrimination. We find that
complainant has failed to do so. Therefore, the agency's determination
that complainant failed to establish that he was discriminated against
was correct.
CONCLUSION
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's decision.
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:
March 8, 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 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.
2The Commission notes that on appeal, complainant also alleges that
after filing his complaint one of the agency officials who participated
in the selection process, JH, began to harass him. For example, she
circumvented his authority and reassigned him to another position.
Complainant is advised that if he wishes to pursue, through the EEO
process, the additional claims he raised for the first time on appeal,
he must initiate contact with an EEO counselor within fifteen days after
he receives this decision. The Commission advises the agency that if
complainant seeks EEO counseling regarding the new allegation within the
above fifteen-day period, the date complainant filed the appeal statement
in which he raised this claim with the agency shall be deemed to be
the date of the initial EEO contact, unless he previously contacted a
counselor regarding these matters, in which case the earlier date would
serve as the EEO counselor contact date. Cf. Qatsha v. Department of
the Navy, EEOC Request No. 05970201 (January 16, 1998).