01971376
10-29-1999
Mark V. Hurley, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Mark V. Hurley, )
Appellant, )
) Appeal No. 01971376
v. ) Agency Nos. DE91-14, DE91-14R
)
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq.; and the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUES PRESENTED
The issues presented herein are whether appellant has established
that the agency discriminated against him based on sex and age (54)
when he was not selected for the position of Regional Loan Specialist;
and whether the agency properly dismissed appellant's allegation that
he was non-selected for 34 positions between 1978 and 1990.
BACKGROUND
Appellant filed a formal complaint in March 1991 in which he alleged that
he was discriminated against when he was non-selected for the position
of Regional Loan Specialist (the Position) in January 1991 (Issue 1).
Appellant also alleged that he was discriminated against in that, since
his downgrade to the GS-12 level in 1978, he had been non-selected
for 34 other positions prior to January 1991 (Issue 2). Although the
agency accepted Issue 1 for processing, it dismissed Issue 2 as untimely.
Appellant appealed the dismissal of Issue 2, which was ultimately vacated
by the Commission. Hurley v. Department of Housing and Urban Development,
EEOC Request No. 05920519 (August 20, 1992). Pursuant to that decision,
the agency was ordered to determine whether the incidents set forth
in Issue 2 constituted a continuing violation.<0> In the interim,
the agency investigated Issue 1 and, when appellant did not request a
hearing, issued a final decision finding no discrimination.<0> It is
from this decision that appellant now appeals.
During the period in question, appellant was employed by the agency as
a Financial Analyst, GS-1160-12. Appellant applied for the position of
Regional Loan Specialist, GS-1165-13, in January 1991 and was thereafter
placed on a list of �Best Qualified� applicants. Following an interview
with the Position's selecting official (SO), appellant was informed that
he had not been selected in favor of a female applicant (the Selectee,
43).
In support of the decision to select the Selectee, the SO cited her oral
and written communication abilities, her job experience and knowledge,
and her ability to train others. The SO explained that the Selectee's
service as a Financial Analyst in the Office of Public Housing gave her
multi-family housing experience, while her underwriting experience gave
her single-family housing experience.
In this regard, the Position's description emphasizes that the incumbent
must possess both single-family and multi-family housing experience.
ANALYSIS AND FINDINGS
Issue 1
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that the
legitimate reason articulated by the agency was not its true reason, but
was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). This analysis is equally applicable to claims brought
under the ADEA. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
Initially, we find appellant has established a prima facie case of age
and sex discrimination. In so finding, we note that appellant was not
selected for the Position in favor of the Selectee, a female who is
substantially younger than appellant. See O'Connor v. Consolidated Coin
Caters Corp., 517 U.S. 308 (1996); Bundy v. Jackson, 641 F.2d 934, 951
(D.C. Cir. 1981).
Because appellant has established a prima facie case, the agency has
the burden of articulating a legitimate, nondiscriminatory reason for
the challenged action. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981). We find that the agency has met this burden.
Specifically, the SO testified that he chose the Selectee based on her
experience, her communication skills, and her ability to train others.
At this point, appellant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination.
Appellant can do this either directly, by showing that a discrimi-natory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
Id. at 519 (emphasis in original). In a non-selection case, pretext may
be demonstrated where appellant's qualifications are shown to be plainly
superior to those of the selectee(s). Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). An employer, however, has the discretion to
choose among equally qualified candidates. Canham v. Oberlin College,
666 F.2d 1057, 1061 (6th Cir. 1981).
Having considered appellant's various contentions, we find he has not
established pretext. Appellant's primary contention is that he was the
best qualified candidate for the Position because, prior to his demotion
in 1978, he held a position that was equivalent to the Position. The SO
testified, however, that there were considerable differences between the
two positions and that a lot had changed in the area during the 12 years
since appellant's demotion. The Commission finds that, even if there were
similarities between the two positions, appellant has not demonstrated
that his qualifications for the Position were �plainly superior� to
those of the Selectee. In so finding, we note that both individuals
were working as Financial Analysts and had backgrounds that rendered
them well-qualified for the Position. Accordingly, the Commission finds
appellant has not established discrimination with regard to this issue.
Issue 2
As noted at the outset, the agency's dismissal of Issue 2 has been
previously addressed by the Commission in several decisions. At this
point, the Commission finds that there is sufficient evidence in the
record to address whether the agency's dismissal was proper.
Initially, it is undisputed that none of the pre-January 1991
selections were raised within the 30-day period set forth at 29
C.F.R. �1613.214(a)(1)(i).<0> The Commission has held, however,
that this time limitation may be waived when the complainant alleges
a continuing violation; that is, a series of related discriminatory
acts, one of which fell within the time period for contacting an EEO
Counselor. See McGivern v. U.S. Postal Service, EEOC Request No. 05901150
(December 28, 1990). In determining whether a continuing violation exists,
it is necessary to determine whether the acts are interrelated by a
common nexus or theme. See Vissing v. Nuclear Regulatory Commission,
EEOC Request No. 05890308 (June 13, 1989). If such a nexus exists, the
complainant has established a continuing violation and the agency is then
obligated to "overlook the untimeliness of the complaint with respect
to some of the acts" challenged by the complainant. Scott v. Claytor,
469 F. Supp. 22, 26 (D.D.C. 1978).
We agree with the agency and find appellant has not established a
continuing violation. Specifically, the information that has been
provided does not reveal that there is a common nexus between appellant's
non-selection for the Position and any of the 34 other non-selections.
In particular, it is not apparent from the record that the RO was involved
in any of the other non-selections. Absent evidence of a nexus, and given
that the 34 non-selections were distinct events, we find appellant has not
established a continuing violation. See Berry v. Board of Supervisors,
715 F.2d 971 (5th Cir. 1983); Miller v. Shawmut Bank, 726 F. Supp. 337
(D. Mass. 1989). Accordingly, the Commission finds that Issue 2 was
properly dismissed.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
10-29-99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations 01 The agency subsequently
issued two final decisions, both of which again dismissed Issue 2
and both of which were vacated by the Commission on the grounds
that the agency had not conducted a complete investigation
prior to the dismissal. Hurley v. Department of Housing and
Urban Development, EEOC Appeal Nos. 01934892 (January 12, 1994)
and 01951548 (February 7, 1996). The agency again dismissed
this issue in the final decision that is currently before
the Commission.
02 The record reveals that, although appellant submitted a request for
a hearing, he sent it to this office rather than the agency's EEO office.
Although the letter advising appellant of where to submit his request
is somewhat ambiguous, we note that, at this juncture, he is not asking
to have his case remanded for a hearing.
03 Prior to October 1, 1992, the effective date of 29 C.F.R. Part 1614,
the applicable time limitation for initiating EEO counseling was 30 days.