01983013
08-15-2000
Rocky B. Denison, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Rocky B. Denison v. Veterans Affairs
01983013
August 15, 2000
.
Rocky B. Denison,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01983013
Agency No. 97-0847
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.<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
basis of sex (male) when the agency did not select him for the following
positions: (1) Telephone Triage Nurse in the Emergency Room on June 3,
1996; (2) Registered Nurse in the Ambulatory Surgery Unit on June 28,
1996; and (3) Registered Nurse in the MICU/CCU on July 10, 1996.
The record reveals that during the relevant time, complainant was
employed as a Registered Nurse in the Operating Room at the agency's
Medical Center facility in Little Rock, Arkansas. Believing the agency
had committed unlawful discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on October 16, 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. When complainant failed to
respond within the time period specified in 29 C.F.R. � 1614, the agency
issued a final decision.
In its FAD, the agency concluded that complainant established prima
facie cases of gender discrimination regarding his non-selection for
the positions because he was qualified for each of the positions, but
was not selected in favor of female selectees. The FAD then concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its actions, namely, that: (1) regarding the telephone triage position,
the selectee received the highest interview score because of her current
and past experience in the area; (2) regarding the ambulatory surgery
position, complainant did not have interview scores as high as the
two selectees; and (3) regarding the MICU/CCU position, the selecting
official eliminated complainant after complainant indicated that he
had a problem with working overtime. Finally, the FAD concluded that
complainant offered insufficient evidence demonstrating that the agency's
articulated reasons were a pretext for unlawful gender discrimination.
On appeal, complainant contends that the agency covered up its
discrimination by inadequately investigating his claim. Complainant
also contends that the agency's dismissal of his claim regarding his
nonselection for a Registered Nurse position on February 20, 1996, was
improper.<2> In response, the agency restates it positions and requests
that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the Commission agrees with the agency that
complainant failed to present evidence that more likely than not, the
agency's articulated reasons for its actions were pretext for gender
discrimination. In reaching this conclusion, we note that other than
his bare assertions of gender discrimination, complainant has provided
no credible evidence demonstrating that the agency considered his gender
in making any of the selections in question. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 15, 2000
1On 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.
2 On March 28, 1997, the agency issued a separate FAD dismissing this
claim because complainant failed to contact an EEO counselor within 45
days of the alleged incident. The FAD informed complainant that he had
30 days to appeal the decision to this Commission. Since complainant
did not appeal the dismissal within the 30-day period, he cannot raise
the issue as a part of this appeal.