0120055369
02-02-2007
Larry S. Davis, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Larry S. Davis,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 0120055369
Agency No. GA04018
DECISION
On August 12, 2005, complainant filed an appeal from the agency's July 15,
2005, final decision (FAD) concerning his equal employment opportunity
(EEO) complaint alleging 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 deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's FAD.1
On June 5, 2004, complainant filed a formal complainant of discrimination,
alleging discrimination in violation of Title VII and the Rehabilitation
Act on the bases of race (Caucasian), sex (male) and disability (back
injury and Post-traumatic stress disorder (PTSD)) when he was not selected
for the position of Technical Data Specialist (TDS), GS-2001-05, target
9.
The record reflects that at the time of the incidents at issue,
complainant had been employed as a Supply Technician, GS-2005-07, in the
agency's Acquisition and Authentication Branch, Defense Supply Center
in Richmond, Virginia, for three years. The record reflects that the
agency posted the Vacancy Announcement for the TDS position on February 9,
2004 and complainant applied for the position under the non-competitive
veterans register (VRA-1). Complainant was found to be qualified for
the TDS position and was referred for selection consideration, but three
(3) African-American females were selected for the positions (Selectees 1
and 2 had no disability; Selectee 3 was classified as unknown disability).
The record also reflects that the Selecting Official (SO; African-American
female, unknown disability) for the position was complainant's immediate
supervisor at the time of the selection. Although complainant was
employed at the GS-07 level, he applied for the TDS position at the
GS-05 level due to his status as a veteran with a 40% disability.
Complainant was on the non-competitive register for the position, while
the competitive register contained seven (7) African-American females
and one African-American male. The record indicates that the SO did not
review complainant's application for the position or interview him as
he was listed on the non-competitive register.2 The SO interviewed the
candidates on the competitive register, and based her selection decision
on the applicant's resume and interview responses. Investigative File
(IF) at 173-190. The record also indicates that the SO stated she chose
the selectees as they were experienced in acquiring, authenticating,
indexing and editing/cleaning technical data. The SO further stated that
the selectees had training in compiling technical data into complete
and technically adequate technical data packages (TDP) and they each
received training on the Bidset Management and Tracking Workflow System
used to track TDP's. IF at 46-53. The SO stated that complainant was
not selected as his name was not referred on the competitive roster,
and the agency's Human Resources office did not require that an applicant
be selected from the non-competitive roster.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b)
concluding that complainant failed to prove that he was subjected to
discrimination as alleged.
The FAD found that complainant established a prima facie case of
race and sex discrimination, as he is a Caucasian male and three (3)
African-American females were selected for the TDS positions at issue.
However, the FAD found that complainant failed to establish a prima
facie case of disability discrimination. In so finding, the FAD
noted that complainant had PTSD and a back injury, with a 40% veterans
disability rating, but failed to proffer evidence that his impairments
substantially limited him in any major life activities. The FAD noted
that complainant's status as a 40% disabled veteran did not render him
a qualified individual with a disability under the Rehabilitation Act.
The FAD then considered the agency's articulated reasons for not
selecting complainant for the TDS position at issue. The FAD noted
that while three (3) African-American females were selected for the
positions at issue, complainant believed he was more qualified than the
selectees. The FAD noted that the SO denied considering complainant's
race, sex and/or disability in her selection decisions. The FAD found
that complainant did not prove that the SO had a discriminatory animus
against him on the alleged bases. Regarding sex discrimination, the FAD
found that the only other male applicant was not selected due to his poor
interview performance, and the record showed that the SO had not selected
African-American females exclusively for positions. The FAD noted that
in April of 2003, the SO selected a Caucasian male and a Caucasian female
from a competitive roster, and thus there was no evidence that the SO
has not selected male and or Caucasian applicants when they appeared on
competitive rosters. Further, the FAD noted that complainant was listed
on the VRA-1 non-competitive promotion list (employees who applied for
positions under the Veterans Recruitment Authority), but agencies are
not required to select from a non-competitive register. As such, the
FAD noted that the SO was within her right to only consider candidates
from the competitive list. FAD at 5. In addition, the FAD found that
regardless of the means by which complainant applied for the position3
(as aVRA candidate or under the merit promotion system), he proffered
no evidence that his qualifications were demonstrably superior to those
of the selectees. FAD at 6.
In addition, the FAD noted that Caucasian males were under represented in
the agency for the job series of the TDS position, but statistics alone
were insufficient to establish that the agency's articulated reasons
were more likely than not a pretext for discrimination. In so finding,
the FAD found that complainant proffered no evidence to show that the
SO's decision to limit consideration to candidates on the competitive
roster was designed to adversely affect Caucasians, males or persons
with disabilities. As such, the FAD found that complainant failed to
establish that the agency's articulated reasons for its actions were
more likely than not pretextual in nature. In so finding, the FAD
noted that the evidence showed that management exercised its options
to select candidates from the competitive promotion register rather
than the non-competitive promotion register, and complainant failed to
demonstrate that management considered his race, sex or alleged disability
in its selection decision. Neither complainant nor the agency has made
appellate arguments to the Commission.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law") )
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 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. See
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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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 8, 1990).
After a review of the record, the Commission 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.4 In reaching
this conclusion, we note that complainant failed to establish that his
qualifications for the TDS position were observably superior to those
of the selectees for the positions. The record indicates that the SO
chose the selectees for the positions at issue due to their experience
and training, which complainant did not possess. IF at 46-53. The SO
stated that the agency's Human Resources office did not require her to
interview applicants from the non-competitive register, and the selectees
were selected from the competitive register due to their experience
with technical data and training in the area of TDPs. While complainant
correctly stated that he was listed on the Veterans Recruitment Authority
register as a disabled veteran, we find that he failed to carry his burden
of establishing that the agency rejected his non-competitive application
for the TDS position because of his race, sex or alleged disabilities.
We note that the record reflects that agency management was not required
to interview applicants on the Veterans Recruitment Authority register
as they are non-competitive applicants, and the SO stated complainant
was not interviewed as his name was not on the competitive register.
IF at 46-60. To the extent that complainant is claiming that the
agency failed to follow procedures related to the Veterans Recruitment
Authority appointment process, we note that we do not have jurisdiction
over these issues. Therefore, after a careful review of the record,
including 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
_____ 2-2-07_____________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 The record indicates that while the SO was aware of complainant's race
and sex, she was not aware of any impairment complainant may have had and
he never requested any accommodations. Report of Investigation at 46-53.
3 The FAD noted that the record was unclear regarding how complainant
applied for the position at issue. While complainant stated he
applied for the position under the merit promotion system and as a VRA-1
candidate, the agency's Human Resources Specialist stated that complainant
applied for the position only as a VRA-1 candidate. FAD at 6.
4 For purposes of analysis, the Commission will assume that complainant is
an individual with a disability under the provisions of the Rehabilitation
Act. We also note that although in the instant case complainant relies
on the fact that he has veterans' disability status, this does not
necessarily establish that he is disabled under the Rehabilitation Act.
McGrady v. United States Postal Service, EEOC Appeal No. 01976169 (July
10, 2000). As we have stated in prior decisions, veterans' preference is
not an enumerated basis for filing a formal EEO complaint. Administrative
responsibility for the affirmative action plan for disabled veterans
lies with the Office of Personnel Management. Bellantoni v. Department
of the Navy, EEOC Appeal No. 01983836 (September 9, 1999).
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0120055369
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055369