01A15145
11-05-2002
Otis Miller, Jr., Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Otis Miller, Jr. v. Department of the Air Force
01A15145
November 5, 2002
.
Otis Miller, Jr.,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A15145
Agency No. ED1M00011
DECISION
Complainant timely initiated an 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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that on May 13, 1996, the agency announced a vacancy
for the position of Military Personnel Technician (MPT), GS-7, at
the agency's Eglin Air Force Base in Florida. Complainant applied
for the position, but was informed by the Civilian Personnel Office
(CPO) that he was not qualified, as his record did not reflect that
he had knowledge with respect to key aspects of the position at issue,
such as knowledge of Individual Mobilization Augmentees (IMA) programs.
In response, complainant delivered supplemental material to the CPO,
on June 4, 1996, which showed that he did in fact have the requisite
knowledge and experience to qualify him for the MPT position. On that
same day, the CPO created two packages of qualified applicants for
review by the selecting official (SO). Complainant's name, however,
was not included on either list.
Complainant contacted the CPO again on July 8, 1996, and was informed that
the supplemental materials he has provided on June 4 had been misplaced.
Complainant then re-sent the supplemental materials to the CPO on July 9.
Several days later, upon visiting the CPO, complainant discovered that
the 10-point veterans preference list of qualified applicants, of which
he was one, had never been sent to the selecting official. The CPO then
sent a corrected referral list to the SO, but the SO did not attempt
to interview any of the applicants on that veterans preference list.
In July 1996, the SO's first choice to fill the vacant MPT position
declined the offer, so a 5-point veterans preference candidate was
offered, and accepted, the position.
Upon learning that he had not been selected for the position, complainant
sought EEO counseling and subsequently filed a formal complaint on May 19,
2000, alleging that he was discriminated against on the basis of race
(Black) when he was not selected for the MPT position in August 1996.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that while complainant established
a prima facie case of race discrimination, it nonetheless articulated
legitimate, nondiscriminatory reasons for not selecting complainant for
the MPT position. Specifically, the FAD found that both the original
selectee and the subsequent selectee were knowledgeable in the IMA
program and had current IMA experience, interviewed well, and had
excellent reputations with former co-workers. (Report of Investigation,
page 142-3). On the contrary, complainant's IMA experience was not
current, and his reputation was unknown by SO as he had not previously
worked in the organization. With respect to the complainant's name not
being referred to SO on either of the original referral lists, and his
supplemental materials being misplaced, the FAD found that this was due
to administrative errors in the CPO, and was not the result of unlawful
race discrimination. (R.O.I., page 89-90). Complainant makes no new
contentions on appeal. The agency requests that we affirm its FAD.
Complainant may establish a prima facie case of race discrimination in the
non-selection context by showing that: (1) he is a member of a protected
class; (2) he was qualified for the position; (3) he was not selected
for the position; and (4) he was accorded treatment different from that
given to persons otherwise similarly situated who are not members of
her protected group or, in the case of age, who are considerably younger
than he. Williams v. Department of Education, EEOC Request No. 05970561
(August 6, 1998); Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248 , 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of a
prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that complainant has not shown that his qualifications were
�observably� superior to the selectee, nor has he shown that the
agency's legitimate, non-discriminatory reasons were merely pretext
for discriminatory animus. We note that while it is clear that
numerous errors were made with regard to the processing of complainant's
application and the handling of his supplemental materials, we find that
complainant has not established, by a preponderance of the evidence that
the errors made by the CPO were intentional, or motivated by unlawful
race discrimination.<1> Therefore, after a careful review of the record,
including complainant'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 (M0701)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 5, 2002
__________________
Date
1 Insofar as complainant contends that he was denied his veterans
preference with respect to the position at issue, the Commission notes
that it has no jurisdiction over Veterans Preference issues. See Roth
v. Department of Commerce, EEOC Request No. 05910129 (March 7, 1991).