Lucius L. Brown, Jr., Complainant,v.Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission,<1> Agency.

Equal Employment Opportunity CommissionNov 9, 2000
01a02263 (E.E.O.C. Nov. 9, 2000)

01a02263

11-09-2000

Lucius L. Brown, Jr., Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.


Lucius L. Brown, Jr. v. Equal Employment Opportunity Commission

01A02263

November 9, 2000

.

Lucius L. Brown, Jr.,

Complainant,

v.

Ida L. Castro,

Chairwoman,

Equal Employment Opportunity Commission,<1>

Agency.

Appeal No. 01A02263

Agency Nos. 0-9800011-HQ

1-9800083-HQ

0-9900007-HQ

DECISION

Complainant timely initiated an appeal from the agency's final action

concerning three consolidated equal employment opportunity (EEO)

complaints 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. and the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq. <2>

ISSUE PRESENTED

The issue presented herein is whether the agency's decision to fully

implement the decision of the Administrative Judge (AJ), issued without

a hearing finding no discrimination, was proper.

BACKGROUND

Complainant, a Social Science Research Analyst, GS-13, in the Office

of Research, Information and Planning (ORIP), filed three separate

EEO complaints. In the first complaint (0-9800011-HQ), complainant

claimed that he was discriminated against on the bases of his race

(African-American) and sex (male) when he was not selected for 1 of 4

positions as a Program Analyst, GS-14, in the Office of Field Programs

(OFP). In the second complaint (1-9800083-HQ), complainant claimed

that he was discriminated against on the bases of his race, sex, and

in reprisal for prior EEO activity, when he was not selected for the

position of Program Analyst, GS-13, in the Office of Field Programs (OFP).

In his third complaint (0-9900007-HQ), complainant claimed that he was

discriminated against on the bases of his race, sex, and age (47), when

he was not selected for the position of Management and Program Analyst,

GS-14, in ORIP.

Following the investigation of the three complaints, complainant requested

a hearing before an AJ. Prior to the hearing, the agency submitted a

motion for summary judgment claiming that there were no genuine issues

of material fact in dispute. Complainant opposed the agency's motion.

The AJ concluded that there was no dispute as to material facts and

that there was sufficient information upon which to base a decision

without a hearing. As a result, the AJ granted the agency's motion for

summary judgment and issued a undated decision finding no discrimination.

By a final action dated December 28, 1999, the agency stated that it

was fully implementing the AJ's decision finding no discrimination.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.109(g) authorizes AJs to issue decisions

without a hearing where the material facts are not in genuine dispute

and there is no genuine issue as to credibility. In the case before

us, we find that the AJ was correct in concluding that there were no

genuine dispute of the material facts and there was no genuine issue as

to credibility.

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a case alleging

employment discrimination is a three-step process. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-803 (1973).. Complainant has the

initial burden of establishing a prima facie case of discrimination

which can be shown by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination. McDonnell Douglas, 411

U.S. at 802. If complainant meets this burden, then the burden shifts

to the agency to articulate some legitimate, nondiscriminatory reason

for its challenged action. Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). To meet this burden the agency must produce

evidence of the stated reasons for its actions that is sufficient to

raise a �genuine issue of fact� as to whether discrimination occurred.

Id. at 254. If the agency is successful, then the burden reverts back

to complainant to demonstrate by a preponderance of the evidence that

the agency's reasons are a pretext for discrimination. Id. at 256.

Agency No. 0-9800011-HQ

It is undisputed that complainant established a prima facie case of

discrimination on the bases of his sex and race. Complainant applied

and was deemed qualified by the agency for 4 vacant Program Analyst

positions in OFP; he was not selected; and 4 individuals (1 Hispanic male,

1 Caucasian male, 1 African-American female, and 1 Caucasian female)

were selected. The agency articulated a legitimate nondiscriminatory

reason for complainant's non-selection. Specifically, the agency asserted

that it did not select complainant because it was not familiar with

his work, his Program Analyst experience did not include working with

field District Directors, and it did not want to hire someone who would

require a learning curve before full performance could be achieved.

The Commission finds that complainant failed to demonstrate that the

selecting official or recommending officials were familiar with his work,

that his Program Analyst experience included working with field District

Directors, or that he previously worked in OFP (thus eliminating the

need for a learning curve). In contrast, the record shows that all

of the selectees' work was known by the recommending officials and

the selectees all worked in the OFP as GS-13 Program Analysts prior to

their selection. Moreover, other than complainant's bare assertions to

the contrary, complainant failed to set forth any evidence demonstrating

that the agency's legitimate nondiscriminatory reasons were, in fact,

pretextual.

Complainant also argued that the recommending officials engaged in

pre-selection because they only chose individuals who had worked in OFP.

Pre-selection, however, does not violate Title VII when it is based

on the qualifications of the pre-selected party and not on some basis

prohibited by Title VII. Goostree v. State of Tennessee, 796 F.2d 854,

861 (6th Cir. 1986). In the instant matter, the explanation that the

selectees' experience working in the OFP was a factor in the selection

tends to weigh against the notion that the recommending officials judgment

of complainant's qualifications was based on discriminatory animus.

Rather, it proves that the recommending officials were most familiar with

the selectees' work habits, qualifications and knowledge of the office,

and based on this, they felt that the selectees were the best candidates

for the positions.

Complainant failed to show that there was any genuine dispute of the

material facts or that there was any genuine issue as to credibility.

Accordingly, the Commission finds that the AJ correctly granted the

agency's motion to issue a decision without a hearing and to issue a

finding of no discrimination.

Agency No. 1-9800083-HQ

The AJ found that complainant established a prima facie case of

discrimination on the bases of race and sex because complainant applied

and was deemed qualified by the agency for a Program Analyst position

in the OFP and an individual outside complainant's protected categories

was selected. Furthermore, the AJ found that the agency articulated

a legitimate nondiscriminatory reason for complainant's non-selection.

Specifically, the selecting official stated that she chose the selectee

over complainant because the selectee had more experience germane to the

available position and had more overall experience than complainant.

The Commission notes that complainant's application has a gap from

April 1984 to March 1993 in which no work history is provided. Again,

other than his bare assertions, complainant has failed to set forth

any evidence that would rebut the agency's legitimate nondiscriminatory

reasons and prove that they were pretextual.

Complainant failed to show that there was any genuine dispute of the

material facts or that there was any genuine issue as to credibility.

Accordingly, the Commission finds that the AJ correctly granted the

agency's motion to issue a decision without a hearing and to issue a

finding of no discrimination.

Agency No. 0-9900007-HQ

The AJ determined that complainant established a prima facie case of

discrimination on the bases of his sex and age, because complainant

applied and was deemed qualified by the agency for the available position

and an individual not in complainant's protected categories was selected.

The AJ further determined that complainant failed to establish a prima

facie case of discrimination on the basis of his race. In this case,

the selectee was a member of complainant's race and complainant failed

to present any evidence which, if unexplained, would reasonably give

rise to an inference of discrimination. See Shapiro v. Social Security

Administration, EEOC Request No. 05960403 (December 6, 1996) (citation

omitted).

The AJ found that the agency articulated a legitimate nondiscriminatory

reason for complainant's non-selection. Specifically, the selecting

official stated that she chose the selectee because the selectee had a

more complete and detailed application, and because the selecting official

concluded that the selectee had superior oral presentation skills.

Complainant failed to show that there was any genuine dispute of the

material facts or that there was any genuine issue as to credibility.

Accordingly, the Commission finds that the AJ correctly granted the

agency's motion to issue a decision without a hearing and to issue a

finding of no discrimination.

CONCLUSION

Based on the de novo review of the entire record before us, the Commission

finds that the AJ's decision finding no discrimination was proper and

that the agency's final action implementing the AJ's finding of no

discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

November 9, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1In the instant matter, the Equal Employment Opportunity Commission

is both the respondent agency and the adjudicatory authority. The

Commission's adjudicatory function is separate and independent from

those offices charged with the in-house processing and resolution

of discrimination complaints. For purposes of this decision, the term

"Commission" or "EEOC is used when referring to the adjudicatory authority

and the term "agency" is used when referring to the respondent party in

this action. The Chairwoman has recused herself from participation in

this decision.

2 On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.