Norvell A. Chambers, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 31, 1999
01974824 (E.E.O.C. Aug. 31, 1999)

01974824

08-31-1999

Norvell A. Chambers, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Norvell A. Chambers, )

Appellant, )

) Appeal No. 01974824

v. ) Agency No. 95-2185

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of race (Black), reprisal (prior EEO activity), and age (59),

in violation of 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 (ADEA), as amended, 29 U.S.C. � 621 et seq. Appellant alleges

he was discriminated against when he was not selected for a GS-230-12

Supervisory Employee Relations Specialist position in or around June of

1995. The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED

The record reveals that during the relevant time, appellant was employed

as a GS-11 Training and Development Specialist at the agency's Medical

Center in Richmond, Virginia. Appellant alleged that the selectee (White,

45, EEO activity unknown) should not have been selected because he had

previously been unsuccessful in a prior supervisory position in another

agency facility. Appellant also alleged that the Selecting Official

(SO) was biased and ensured the selectee's recommendation by developing

the questions, picking appropriate panel members and having a friend

of his wife act as a technical advisor to the panel. The three panel

members consistently testified that SO's questions were merely suggested

questions, and the panel could, and did, ask additional questions of the

applicants. The panel members also indicated that the technical advisor

left the room at appellant's request during appellant's interview, and

that he played no part in their assessment of the candidates. Finally,

the panel members felt the selection process was fair and unbiased,

and the selectee was scored higher (249 points to 194 points) by all

three panel members. SO stated he selected the selectee based on the

panel's recommendation, and that while he was aware of appellant's prior

EEO activity, such knowledge did not affect his decision to adopt the

panel's recommendation.

Believing he was a victim of discrimination, appellant sought EEO

counseling and subsequently filed a complaint on August 18, 1995. At

the conclusion of the investigation, appellant requested a hearing, but

subsequently withdrew his request and asked that the agency issue a FAD.

The FAD concluded that appellant established prima facie cases of race

and age discrimination, but failed to establish a prima facie case

of retaliation because he presented no evidence that any of the panel

members knew about his prior EEO activity. The FAD also concluded

that the agency articulated legitimate, nondiscriminatory reasons for

its actions, namely, that a panel interviewed, rated and ranked the

selectee higher than appellant, and that SO adopted the recommendation

of the panel. The FAD then concluded that appellant failed to present

evidence that the selection process was tainted by discriminatory or

retaliatory animus, noting that the panel members consistently denied

the selection process was biased.

On appeal, appellant makes similar arguments to those advanced to

the agency. The agency requests that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas v. Green,

411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);

Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981),

and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to retaliation cases), the Commission agrees

with the agency that appellant failed to demonstrate that more likely

than not, discriminatory animus motivated the panel's recommendation of

the selectee for the position at issue.<1> The only evidence of racial

or other animus in the record is based on appellant's unsubstantiated

allegations, and there is no evidence that the establishment of the

selection panel, or the recommendation of the panel, was at all tainted

with discriminatory or retaliatory animus. Therefore, after a careful

review of the record, including appellant's contentions on appeal, the

agency's response, and arguments and evidence not specifically addressed

in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 the 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 the 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 the 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:

August 31, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 We note that as SO

had knowledge of appellant's prior EEO activity

and was responsible for establishing the selection

panel and making the final selection decision,

appellant established a prima facie case of

retaliation. However, the record supports the

FAD's conclusion that appellant presented no

evidence that the agency's articulated reason

was a pretext for retaliation.