01985737
07-12-2000
Louis Anderson, Jr., Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Louis Anderson, Jr. v. Department of the Air Force
01985737
July 12, 2000
Louis Anderson, Jr., )
Complainant, )
) Appeal No. 01985737
v. ) Agency No. 7KOJ95014
) Hearing No. 150-97-8057X
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission 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,
as amended, 42 U.S.C. � 2000e et seq.<1> For the reasons that follow,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue on appeal is whether complainant has proven that the agency
discriminated against him based on race/color (Black), sex (male),
and reprisal (prior EEO activity) when the agency did not select him
for five positions it filled between July 1994 and October 1994.
BACKGROUND
During the period in question, complainant was a Compress Gas Monitor,
WG-5, at a Florida facility of the agency. Believing he was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint alleging that the agency discriminated against him based
on race/color (Black), sex (male), and reprisal (prior EEO activity)
when it failed to select him for any one of five positions it filled
between July 24, 1994 and October 16, 1994.
Complainant stated that the agency's actions were discriminatory because
the agency failed to announce the five vacant positions to prevent
complainant from applying for them, complainant was as or more qualified
than all of the selectees, and the agency did not promote black males
for decades.
The agency stated that complainant was not selected for five positions
in its supply division, i.e., three Supply Technician, GS-7, positions;
a General Supply Specialist, GS-9, position; and a Supply Management
Officer, GS-12, position. Further, the agency gave the following reasons
for complainant's non-selections.
All three of the Supply Technician positions were encumbered at the
lower (GS-6) grade level. Two of them were noncompetitive<2> upgrades
resulting from new Office of Personnel Management (OPM) standards.
The third was a limited competition<3> upgrade resulting from an
accretion of duties.
The General Supply Specialist position was encumbered at a lower (GS-7)
level and was classified under a title that was better suited for a
more clerical-technical position. The noncompetitive upgrade was the
result of a desk audit and an accretion of duties.
The Supply Management Officer, GS-12, position was temporarily filled
noncompetitively due to the unexpected death of its incumbent.
The temporary selectee was later made permanent by a competitive
selection through an agency career program, in which complainant did
not participate.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ concluded that complainant failed
to establish a prima facie case of discrimination based on race/color,
sex, or reprisal. Specifically, the AJ concluded that complainant did
not show a causal connection between his prior EEO activity and his
non-selections and that complainant did not establish a prima facie
case of discrimination based on his last non-selection so, under the
continuous violation theory, there was no need to analyze his prior four
non-selections. The AJ added further that even aside from the absence
of a prima facie case for the last non-selection, complainant could not
establish pretext for any of the five non-selections.
The agency issued a FAD concurring with the AJ's finding of no unlawful
employment discrimination based on race/color, sex, or reprisal.
This appeal followed.
ANALYSIS AND FINDINGS
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the complainant
must then prove that the legitimate, nondiscriminatory reason articulated
by the agency is merely pretext for its discrimination. Id. at 804.
Complainant may establish a prima facie case of discrimination based on
race/color and sex by showing that (1) he is a member of a protected
class, (2) he applied and was qualified for a position for which the
agency was hiring, (3) he suffered an adverse employment action and (4)
others who were similarly situated but outside of his protected class
were treated more favorably. Id. at 802.
Complainant also alleged reprisal. In order to establish a prima facie
case of discrimination for an allegation of reprisal, complainant
must show: (1) that he engaged in prior protected activity, e.g.,
participated in a Title VII proceeding; (2) that the responsible
management official (RMO) was aware of the protected activity; (3)
that he was subsequently disadvantaged by an adverse action; and,
(4) that there is a causal link between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F.Supp. 318, 324 (D. Mass), affirmed,
545 F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10thCir. 1982), cert. denied, 459 U.S. 1071 (1982).
The causal connection may be shown by evidence that the adverse action
followed the protected activity within such a period of time and in such
a manner that a reprisal motive is inferred. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
"Generally, the Commission has held that a nexus may be established if
events occurred within one year of each other." Patton v. Department of
the Navy, EEOC Request No. 05950124 (June 27, 1996).
Although the initial inquiry in a discrimination case typically focuses
on whether a complainant has established a prima facie case; because the
agency articulated a legitimate, nondiscriminatory reason for its action,
we may proceed directly to determining whether complainant satisfied
his burden for showing pretext. Haas v. Department of Commerce, EEOC
Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service Board
v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this in one
of two ways, either directly, by showing that a discriminatory reason
more likely motivated the agency, or indirectly, by showing that the
agency's proffered explanation is unworthy of credence. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
The Commission notes that the continuous violation theory, which is
used to gauge the timeliness of a complainant's initial EEO contact,
was applied in the instant case, and as such the Commission finds it
appropriate to address the merits of all five of the complainant's
non-selections herein.
In this case, the Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The agency stated that it
sought to maximize the use of its resources with little or no adverse
impact on its employees; which resulted in two noncompetitive position
upgrades, one limited competition upgrade, one promotion due to a
desk audit and an accretion of duties, and one temporary promotion,
due to an unexpected death, that later became permanent through
competitive selection under an agency career program. We further find
that complainant failed to establish that the agency's reasons were
pretextual. Complainant alleged that the agency did not announce the
five vacancies for fear he would apply for them, he was equally or more
qualified as all of the selectees, and the agency has failed to promote
black males for decades. The record revealed, however, that complainant
did not express his interest in the positions at issue herein to the RMO,
that complainant worked in a field other than supply, that complainant
did not participate in the aforementioned agency career program, and
that the agency acted in accordance with OPM and agency standards.
Further, the record was void of objective evidence regarding the number
of minorities the agency has hired and other than his mere assertions,
complainant provided no information or argument to support his claims.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and argument and evidence not
specifically addressed in this decision, we AFFIRM the agency's finding
of no discrimination based on race/color, sex, or reprisal.
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:
July 12, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.
2According to the record, an action is noncompetitive if the duties of
the old position remain in the revised position.
3Some form of competition was necessary because the duties contained in
the revised position description were totally different than those in the
old position description. Competition was limited to all employees in the
supply division who were working in Supply Technician, GS-6, positions.