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.