01a02461
06-13-2000
Ronald Gaines, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Ronald Gaines v. Department of Commerce
01A02461
June 13, 2000
Ronald Gaines, )
Complainant, )
)
v. ) Appeal No. 01A02461
William M. Daley, ) Agency No. 996300285D
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (African American), sex (male), and physical disability
(arthritis), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. and the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges he
was discriminated against when there was a delay in his selection for a
position with the Bureau of the Census. The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405). For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
The record reveals that during the relevant time period, complainant
submitted an application for employment to the agency's Bureau of
the Census. Complainant was seeking employment as a Enumerator in the
Valdosta, Georgia area. In September, 1998 he sat for the qualifying
examination conducted by the agency. Between September, 1998 and
November 1998, complainant made repeated inquiries of the agency about his
application but was not hired. In December, 1998, the agency contacted
complainant, seeking to hire him. Complainant was instructed to report
for training on January 4, 1999 which he did. The training was canceled
and complainant was paid for one day's work.
Believing that the agency's delay in hiring him was the result of
discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint on February 16, 1999. The agency accepted the complaint
and conducted an investigation. At the conclusion of the investigation,
complainant requested that the agency issue a final agency decision.
The FAD concluded that complainant failed to establish a prima facie case
of race, sex or disability-based discrimination because he presented
no evidence that similarly situated individuals not in his protected
classes were treated differently under similar circumstances. It also
found that the agency articulated a legitimate, nondiscriminatory reason
for the delay in hiring complainant and that complainant had failed to
prove that the agency's explanation for its action was a pretext designed
to conceal discriminatory animus.
From the FAD, complainant brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and its progeny, Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981); and St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993), the Commission finds that
complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination<2>. In reaching this conclusion, we note that the agency
adduced direct evidence that the delay<3> in hiring complainant resulted
from a clerical mistake which erroneously recorded that complainant had
failed to provide evidence, as is required of all potential employees,
that he was eligible under the immigration laws to be hired. When this
error was corrected, complainant was placed on the list of eligibles and
shortly thereafter hired. Thus, the evidence shows that the delay in
hiring complainant was the result of an oversight and not the product
of discriminatory animus.
CONCLUSION
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:
June 13, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary where, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reason for its actions
was a pretext for discrimination. Id.; see also United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
3Complainant does not complain about the termination of his employment
after one day. His claim is based entirely upon the agency's delay in
hiring him.