Louis B. Lapides, Complainant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionAug 31, 2000
01985712 (E.E.O.C. Aug. 31, 2000)

01985712

08-31-2000

Louis B. Lapides, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


Louis B. Lapides v. Department of Labor

01985712

08-31-00

.

Louis B. Lapides,

Complainant,

v.

Alexis M. Herman,

Secretary,

Department of Labor,

Agency.

Appeal No. 01985712

Agency No. 6-11-111

DECISION

On July 14, 1998, Louis B. Lapides (hereinafter referred to as

complainant) filed a timely appeal from the June 18, 1998, final decision

of the Department of Labor (hereinafter referred to as the agency)

concerning his complaint of unlawful employment discrimination in

violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��

791, 794(c). The appeal is timely filed (see 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.402(a)))<1> and is accepted in accordance with 64 Fed. Reg. 37,644,

37,659 (to be codified as 29 C.F.R. � 1614.405). For the reasons that

follow, the agency's decision is AFFIRMED.

The issue presented in this appeal is whether the complainant has proven,

by a preponderance of the evidence, that the agency discriminated against

him on the basis of disability (deafness) when he was not selected for

the position of Program Assistant, GS-7, in July 1996.

Complainant sought EEO counseling on July 17, 1996, and filed his

formal complaint on August 20, 1996.<2> Following an investigation,

he was advised of his right to a hearing before an EEOC Administrative

Judge or an immediate final agency decision (FAD). He did not respond,

and the agency issued a FAD, finding no discrimination.

Complainant worked as a Computer Assistant in the Office of Legislation

and Actuarial Services, Employment and Training Administration (ETA).

He applied for the position of Program Assistant, Division of Performance

Review, ETA, but was not selected in favor of a hearing person.

The Selecting Official (SO), the division chief, stated that seven

candidates qualified for the position and that she conducted identical

interviews with each one. The SO explained that she based her decision

on a review of the application materials, including each candidate's

response to the five evaluation factors, and the interviews.<3> She

selected the selectee (E1) as the most qualified candidate. With regard

to complainant, the SO stated that, because he did not specifically

respond to the five evaluation factors in his application package and his

answers during the interview were incomplete, she was unable to readily

ascertain his skills and abilities in relation to the evaluation factors,

e.g., to conduct basic research, work in a team environment, and prepare

preliminary drafts of correspondence. She also stated that no specific

training was required for the interview or for the position.

Complainant asserted that he was more qualified than E1 and that E1,

who held the position of division secretary, was preselected. In his

appeal statement, complainant raised a new assertion not mentioned in

the EEO counselor's report, EEO complaint, or his affidavit, that he

had poor interpretive services during his interview.<4>

Complainant has alleged that the agency's failure to select him for

the position constituted disparate treatment based on disability.

The record shows, and the agency does not dispute, that complainant

is a qualified person with a disability. See 29 C.F.R. � 1630.2(g);

29 C.F.R. � 1630.2(m)-(n). For purposes of analysis, we find that

complainant has established a prima facie case. See McDonnell Douglas

Corporation v. Green, 411 U.S. 792 (1973); Prewitt v. United States Postal

Service, 662 F.2d 292 (5th Cir. 1981). Where the agency articulates an

explanation for its actions, the factual inquiry can proceed directly to

the third step of the McDonnell Douglas analysis--the ultimate question of

whether complainant has shown by a preponderance of the evidence that the

agency's action was motivated by discrimination. United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).

It is complainant's burden to demonstrate by a preponderance of the

evidence that the agency's action was based on prohibited considerations

of discrimination, that is, its articulated reason for its action

was not its true reason but a sham or pretext for discrimination.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

We find that the agency articulated legitimate, nondiscriminatory

reasons for its actions. The agency, through the SO, explained that

she selected E1 based on a review of the application packages and

the individual interviews and that she concluded that E1 was the most

qualified candidate. She stated that complainant's application package

did not clearly demonstrate his skills and abilities in relation to

the evaluation factors and that his answers during the interview were

not as responsive as E1's answers. The burden returns to complainant

to demonstrate that the agency's articulated reasons for its selection

decision were not true or that it was based on discriminatory factors.

Complainant asserts that he met the qualifications and speculates that

he was more qualified than E1, but his mere supposition, without more, is

insufficient to demonstrate pretext. Based on our review of the record,

we find that complainant has not shown that the agency's reasons for

its actions were pretextual.

Complainant also contends that the agency preselected E1. While evidence

of preselection or favoritism may act to discredit an agency's explanation

for its selection, complainant must demonstrate that the selection

decision is not based on the qualifications of the selectee but on

some prohibited basis. See Goostree v. State of Tennessee, 796 F.2d

854, 861 (6th Cir. 1986); Hawkins v. McPherson, 42 FEP Cases 699, 703

(D.D.C. 1986). Complainant's speculation, without more, is insufficient

to show discrimination. Based upon our review of the record, we conclude

that E1's selection was based upon her qualifications and not upon a

prohibited consideration.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__08-31-00________________

Date

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.

2In his complaint, he also claimed that he had been denied training

in 1989, 1994, and 1995, due to a lack of interpretation services.

It appears that this issue is the subject of an earlier complaint.

The agency did not accept this issue for investigation in the instant

matter.

3The vacancy announcement identified five evaluation factors that the SO

would utilize in her decision. While not asked to specifically respond

to them, applicants were required to demonstrate work experiences and

skills that would address them. The selectee specifically responded to

the five factors.

4We note, however, that complainant initially believed that he had

performed well in the interview.