01971583
01-29-1999
McArthur Ester v. Department of Veterans Affairs
01971583
January 29, 1999
McArthur Ester, ) Appeal No. 01971583
Appellant, ) Agency No. 94-1231
v. ) Hearing No. 210-96-6040X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
DECISION
The Commission accepts appellant's timely appeal 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. See EEOC Order No. 960.001. In his
complaint, appellant alleged that he was discriminated against based on
his sex, race (Black) and reprisal for prior EEO activity when he was
not selected for the position of Supervisory Computer Operator, GS-12.
Appellant's position as a Supervisory Computer Operator, GS-11, commonly
was referred to as Assistant Shift Manager. In 1993, it became known
that the person serving as Supervisory Computer Operator, GS-12 (or Shift
Manager), was intending to retire and appellant indicated that he would
file an EEO complaint if he was not selected to fill the anticipated
vacancy. Later, when the position was posted, the selecting official
elected to have a panel of three persons interview and rank applicants and
to make a recommendation to him. The panel was composed of a Black male,
a Black female and a White male. Appellant was interviewed, but a Black
female, who was unanimously recommended by the panel, was selected for
the position.
Appellant timely sought EEO counseling and filed his instant EEO
complaint, which was accepted and investigated by the agency. However,
the EEO Investigator failed to interview any of the panel members
and, although the agency's EEO Officer requested that a supplemental
investigation be conducted, this had not been done prior to appellant's
request for a hearing. After appellant requested a hearing, the original
EEO Investigator rewrote his report of investigation. The matter was
then remanded to the agency for additional investigation, which was
performed by a second EEO Investigator. After a hearing, an EEOC
Administrative Judge ("AJ") issued a recommended decision ("RD")
finding no discrimination.
The AJ found that appellant could not establish a prima facie case
of race discrimination because the selectee was a member of his race.
The AJ also was not persuaded that either appellant's verbal indications
that he would file an EEO complaint in the event he was not selected,
or his prior EEO complaints filed in 1978 and 1988, were sufficient to
establish a prima facie case of reprisal. However, inasmuch as appellant
established a prima facie case of sex discrimination, the AJ addressed
the issue of whether appellant met his ultimate burden to establish
discrimination on any basis or reprisal. While appellant noted that the
agency did not generally utilize a panel to make a recommendation to a
selecting official, the AJ was not persuaded that the use of a panel in
this instance was a pretext for discrimination or reprisal. The AJ was
not persuaded by appellant's argument that, for various reasons, none
of the panelists were qualified to judge the applicants. Insofar as
appellant contended that he was more qualified than the selectee,
the AJ found that the selectee was better qualified than appellant in
supervisory and administrative skills and noted that, while appellant
had more experience as a computer operator, under the union contract,
the Shift Manager was not permitted to touch the equipment. Accordingly,
the AJ found that appellant failed to establish that the legitimate,
nondiscriminatory reasons articulated by the agency for its actions were
a pretext for discrimination or reprisal.
Appellant timely appeals the FAD, which adopted the RD. On appeal,
appellant complains about the investigation of his complaint. However,
these complaints also were raised before the AJ.
After a thorough review of the record, the Commission finds that the RD
adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. Accordingly, the Commission discerns
no basis to disturb the AJ's finding that appellant failed to establish
discrimination. Therefore, 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:
Jan 29, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations