McArthur Ester, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01971583 (E.E.O.C. Jan. 29, 1999)

01971583

01-29-1999

McArthur Ester, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


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