01A33799_r
03-10-2004
Lee A. Black, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.
Lee A. Black v. Federal Deposit Insurance Corporation
01A33799
March 10, 2004
.
Lee A. Black,
Complainant,
v.
Donald E. Powell,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01A33799
Agency No. FDICGC000012
DECISION
Complainant initiated an appeal from a final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
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 Washington DC facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on November 27, 2000, alleging that he was discriminated against
on the bases of race (African-American), sex (male), disability (lumbar
disc disease, chronic pain, glucose intolerance; anxiety disorder),
age (date of birth: August 22, 1939), and reprisal<1> for prior EEO
activity, when:
(1) In June 2000, complainant was notified that a position for which he
had applied, Supervisory, Minority and Women Outreach Program Specialist,
(MWOP), CG-301-14, advertised under vacancy announcement #2000-BDEU-070,
was canceled and subsequently readvertised as #2000-BDEU-076 (which
was subsequently canceled).<2>
On October 17, 2000, complainant was notified that he was ineligible
for the position of Diversity and Affirmative Employment Coordinator,
CG-301-14, vacancy announcement #2000-HQDEU-129.
On January 16, 2001, complainant was notified that he was ineligible for
the position of National Coordinator, Community Affairs, E-0301-15/1,
vacancy announcement #2000-X-152.
On February 21, 2001, complainant was notified that he was not selected
for the position of Supervisory, Minority and Women Outreach Program
Specialist, (MWOP), CG-301-14, vacancy announcement #2000-HQDEU-128.
Complainant was not selected for the position of Chief, Financial
Institutions Section, CG-15, vacancy announcement #2000-HQDEU-127.
Complainant was not selected for the position of Community Affairs
Officer, CG-0301-14, vacancy announcement #2000-KC-DEU-034.
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. Subsequently, complainant withdrew his
hearing request. Accordingly, the agency issued a final decision.
In its decision, the agency concluded that complainant failed to establish
a prima facie case of discrimination with respect to any of his claims
or bases and that no discrimination had occurred. Specifically, the
agency concluded that complainant's complaint, as amended, included
only four distinct claims of non-selection: Supervisory, Minority and
Women Outreach Program Specialist; Diversity and Affirmative Employment
Coordinator; National Coordinator, Community Affairs; and Community
Affairs Officer.<3> The agency found that for the positions of National
Coordinator (claim 3) and Community Affairs Officer (claim 6), agency
personnel specialists determined that complainant was not minimally
qualified for either of these positions. The agency found that for the
positions of Supervisory, Minority and Women Outreach Program Specialist
(claim 4) and Diversity and Affirmative Employment Coordinator (claim
2), complainant's applications showed that complainant met the minimum
qualification requirements, but his applications were not rated high
enough by rating and ranking panel members to be referred to the
respective selecting officials.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. See Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978); Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979) (requiring a showing that age was a determinative factor,
in the sense that "but for" age, complainant would not have been subject
to the adverse action at issue); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981).
Claims 1 and 4
We find nothing in the record indicates that the agency cancelled
vacancy announcements #2000-BDEU-070 and #2000-BDEU-076 for the purpose
of frustrating complainant's application for the position of Supervisory,
Minority & Women Outreach Program Specialist (MWOP), CG-301-14. Nor do
we find anything in the record to support complainant's claim that
he was subjected to discrimination when he was not selected for the
position described in vacancy announcement #2000-HQDEU-128. The record
supports the agency's legitimate, non-discriminatory reason for failing
to forward complainant's application to the selecting official, namely,
that the reviewing panel members did not assign a high enough score
to complainant's application to warrant further consideration by the
selecting official. In addition, there was no evidence that any of the
panel members or the personnel specialist were motivated by unlawful
discrimination.
Claim 2
With respect to the position of Diversity and Affirmative Employment
Coordinator, CG-301-14, vacancy announcement #2000-HQDEU-129, we find
that the record supports the finding of the evaluating panel that
complainant's application was non-responsive to the rating factors and
did not demonstrate the background experience in employment necessary for
candidates for this position. We concur with the agency's determination
that complainant's application package was poorly constructed and failed
to reflect that complainant possessed the written communication skills
required by this position. In addition, there was no evidence that the
agency's actions were motivated by unlawful discrimination.
Claim 3
With respect to the position of National Coordinator, Community Affairs,
E-0301-15/1, vacancy announcement #2000-X-152, the record supports the
agency's determination that complainant did not have the required one
year of specialized experience at the grade 14 level. We find that while
complainant's application demonstrates that he was previously employed
by a federal agency at the GS-14 level, his application fails to exhibit
experience in national community affairs specific to the procedures for
fair lending, thrift supervision, and banking regulation. We find the
agency's determination that complainant was ineligible for this position
is supported by the record and that complainant failed to show that the
agency's actions were motivated by unlawful discrimination.
Claim 5
We find that complainant has not shown that he applied for the position
of Chief, Financial Institutions Section, CG-15, vacancy announcement
#2000-HQDEU-127. Accordingly, complainant was properly not considered
for this position and there is no evidence of a discriminatory motive
by the agency.
Claim 6
Our review of the record supports the agency's finding that complainant
did not meet the minimum qualifications for this position of Community
Affairs Officer, CG-0301-14, namely, complainant's application lacked
any coherent showing that complainant possessed the necessary one year of
specialized experience performing similar duties to those of the position,
at the GS-13 level. The Commission notes that both selectees were
employed by the agency in the position of Community Affairs Specialist,
CG-301-13, for over one year at the time they applied for the position
of Community Affairs Officer. The Commission finds that complainant
failed to show that the selection decision was motivated by unlawful
discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, we AFFIRM the agency's final
decision finding no discrimination.
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
March 10, 2004
__________________
Date
1Complainant added reprisal as a basis when he
amended his complaint to include claims 3 - 6, which positions were filled
(and complainant was notified of his nonselection) after complainant had
contacted the agency's EEO office to seek counseling regarding claims
(1) and (2).
2The record shows that #2000-BDEU-076 was subsequently also canceled
and the agency re-advertised the same position as vacancy announcement
#2000-HQDEU-128, for which position complainant was also not selected
(claim 4).
3The agency found that complainant had not applied for the position
of Chief, Financial Institutions Section, CG-15, vacancy announcement
#2000-HQDEU-127 (claim 5).