01a02095
05-06-2000
Richard T. Cullom, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Richard T. Cullom v. Department of Veterans Affairs
01A02095
May 6, 2000
Richard T. Cullom, )
Complainant, )
) Appeal No. 01A02095
v. )
) Agency No. 98-2607
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
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, 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.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405). Complainant alleged that he was discriminated
against on the bases of race (African-American), age (54) and reprisal
(prior EEO activity), when he was not selected for the position of
Employee Relations Specialist, GS-12.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as an Employee Relations Specialist, GS-11, at the agency's Great Lakes
Human Resources Management Service for the Veterans Affairs Medical
Center in Hines, Illinois. In June 1998, complainant applied for the
GS-12 Employee Relations Specialist position. Complainant alleged that
while he was qualified and referred for consideration, the agency failed
to provide him an interview as it did for the selectee. Complainant's
supervisor, the selecting official for the position, stated that she
did not interview any of the applicants for the position, but instead
relied on the information in their application packages. Based on her
review of the applicants' qualifications, she selected the selectee,
an individual she described as strong in the area of employee relations.
Complainant's supervisor stated that based on her prior experience with
complainant's work, she did not consider him able to perform the added
duties of the GS-12 level position, as he experienced serious difficulty
in performing the duties of a GS-11 level Employee Relations Specialist.
Her assessment of complainant's work was supported by her supervisor, the
Deputy Manager, who had been complainant's prior supervisor. While both
supervisors indicated that they made complainant aware of his performance
problems, complainant asserted that prior to the non-selection, no one
ever informed him of any performance deficiencies.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on September
3, 1998. 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.
When complainant failed to respond within the requisite time period,
the agency issued a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of race discrimination regarding his non-selection for
the position because he was qualified for the position but was not
selected in favor of the selectee, an individual outside his race.
The agency also found that complainant established a prima facie case
of reprisal because the evidence indicated that the agency was aware
of complainant's prior EEO activity and there was a sufficient nexus
between the agency's actions and the prior activity. Since complainant
(age 54) was substantially the same age as the selectee (age 53), the
agency concluded that complainant failed to establish a prima facie case
of age discrimination. The agency also found that complainant failed
to establish a prima facie case of harassment because he failed to show:
that he was subject to any unwelcome conduct; that the alleged conduct was
based on any of his protected bases; or that the conduct was sufficiently
severe or pervasive enough to create a hostile work environment.
The agency then concluded that the management articulated legitimate,
nondiscriminatory reasons for its actions, namely, that complainant was
having difficulty performing at the GS-11 level of the position, and
thus not ready to assume the added duties of the GS-12 level. Finally,
the agency found that complainant failed to satisfy his overall burden
of persuasion because he did not offer sufficient evidence to demonstrate
that management's articulated reason was unworthy of belief. On appeal,
complainant makes no new contentions, and the agency requests that we
affirm the FAD.
ANALYSIS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411, U.S. 792 (1973); Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the Commission finds that complainant failed to present sufficient
credible evidence demonstrating that the agency subjected him to unlawful
discrimination in filling the position. In reaching this conclusion, we
note that other than his bare assertions, complainant fails to provide any
evidence suggesting a discriminatory motive in this matter. Contrary to
complainant's assertion, we find that the record does not reveal that the
agency failed to consider his application or that any applicant received
an interview for the position. We find that based on the qualifications
of the applicants, the agency selected an individual with a background
compatible with the needs of the position. As to whether management
had, prior to the selection, informed complainant of their concerns
with his performance, we find that the record indicates that both of
complainant's supervisors had informed complainant of their concerns. In
both supervisors' affidavits, they stated that at various times prior
to the selection, each had conversations with complainant regarding the
quality and timeliness of his work. While complainant disagrees with
the supervisors' statements, we find that because he failed to present
convincing evidence, he has failed to satisfy his burden of proving by
a preponderance of the evidence that his supervisors articulated reasons
were a pretext for discrimination. Therefore, after a careful review of
the record, including arguments and evidence not specifically addressed
in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.