01A30095_r
03-17-2003
Leon Whitted, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Leon Whitted v. Department of Veterans Affairs
01A30095
March 17, 2003
.
Leon Whitted,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A30095
Agency No. 200H-00645-2001300476
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as a Food Service Worker, WG-3, at the agency's Pittsburgh Veterans
Health Care System in Pittsburgh, Pennsylvania. Complainant sought
EEO counseling and subsequently filed a formal complaint on October 1,
2001, alleging that he was discriminated against on the basis of race
(African-American) when management did not refer him for selection
consideration for the position of Motor Vehicle Operator, WG-5703-6,
Vacancy Announcement No. 2001-59 OC and Vacancy Announcement No. 2001-60
OC.
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
requested that the agency issue a final decision.
In its FAD, the agency determined that complainant established a prima
facie case of race discrimination. However, the agency determined that
it had articulated a legitimate reason for not referring complainant for
selection consideration for the two Motor Vehicle Operator positions.
Specifically, the agency presented evidence supporting a determination
that the two selectees received higher rating scores for the Motor
Vehicle Operator positions than complainant and were therefore referred
for further consideration. Further, the agency found that complainant
failed to present any evidence which demonstrated that the agency's
articulated reasons for its actions were a pretext for discrimination.
Complainant makes no new contentions on appeal. The agency requests that
we affirm its FAD.
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 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
non-discriminatory reason for its employment actions. Specifically,
the agency presented evidence supporting a determination that candidates
with 15 points or higher were referred to the selecting officials for
further consideration.<1> The record indicates that the two selectees
received a rating score of above 15 points and were referred for
further consideration. Complainant received a rating score of 12 and
was therefore not referred for further consideration.
The record in this case contains two affidavits from the selecting
officials. The Selecting Officials stated that they did not discriminate
against complainant based on his race because his name never came
before them for selection consideration. The record also contains
an affidavit from the Human Resource Specialist. Therein, the Human
Resource Specialist stated that complainant was qualified for the Motor
Vehicle Operator position but was not referred for selection consideration
because he scored below the designated cut-off point. The Human Resource
Specialist further stated that the applications are either read to the
selecting officials, or are sanitized to remove the names. Further, the
Human Resource Specialist stated that complainant did not score higher
because he did not provide good answers to the Supplemental Qualification
Questions concerning elements of the Motor Vehicle Operator position.
Complainant has not demonstrated that the agency's articulated reasons
for his non-referral were a pretext for discrimination.
Therefore, after a careful review of the record, we AFFIRM the agency's
finding of 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 17, 2003
__________________
Date
1The record reflects that selectees were
graded on a scale of 0 points (no value) to 4 points (superior) on six
separate criteria: ability to do the work of a motor vehicle operator
without more than normal supervision; ability to drive safely; operation
of motor vehicles; ability to perform operator's maintenance; ability to
interpret instructions and regulations/maintain motor vehicle records; and
reliability and dependability as a motor vehicle operator. Accordingly,
the maximum number of points that could be given to a candidate was 24.