Richard T. Cullom, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 6, 2000
01a02095 (E.E.O.C. May. 6, 2000)

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.