01994167
01-29-2002
Sam A. Winchester, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Sam A. Winchester v. Department of the Navy
01994167
January 29, 2002
.
Sam A. Winchester,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01994167
Agency No. 98-62306-001
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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the bases of race (African
American), color (Black), sex (male), age (DOB: 2/15/48) and reprisal
(prior EEO activity under Title VII) when he was rated as �not qualified�
for the position of GS-1550-13 Computer Scientist.
The record reveals that during the relevant time, complainant was employed
as a GS-334-12 Computer Specialist at the agency's Naval Oceanographic
Office, Stennis Space Center, Mississippi facility. Believing he was
discriminated against, complainant sought EEO counseling and subsequently
filed a formal complaint on October 6, 1997. 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.
The record reflects that complainant and nine other candidates applied for
the position at issue. The announcement specified that candidates had
to meet education and experience requirements, including the completion
of one year of specialized experience at the GS-12 level. Complainant
was notified by letter on August 6, 1997, that he was not considered
for the position because he failed to meet the specialized experience
requirement.<1> Complainant appealed his rating of �not qualified.�
For an independent assessment, complainant's application was forwarded
to the Office of Personnel Management (OPM) for a determination of
complainant's qualifications. OPM also found that complainant failed to
meet the specialized experience requirements in two critical elements.
Nonetheless, the Director of Human Resources Division (Director)
reviewed the case and determined that complainant was qualified under
the position description as written. The Director referred complainant
to the rating panel. The rating panel rated complainant a seventeen.
It was determined that only those rated a twenty or higher would be in
the �Best Qualified� group. The selectee (White, female, DOB: 2/15/64)
was promoted into the position.
In its FAD, the agency concluded that complainant was not discriminated
against. The FAD found that with respect to complainant's allegations of
race, color, age and sex discrimination the agency articulated legitimate,
nondiscriminatory reasons for its action and therefore bypassed the prima
facie analysis. The agency maintained that complainant was found to be
�not qualified� because according to the OPM qualification standards,
in order for a GS-1550 to advance to the next level, the candidate
needed one year of experience at the next lower level. Complainant,
as a GS-334 Computer Specialist, was a systems administrator and
worked with vendor-supplied, off-the- shelf software, while a GS-1150
Computer Scientist had to have in-depth knowledge, since they designed
computer systems and networks and developed software systems. The agency
maintained that even after OPM also found complainant �not qualified,�
the Director reviewed the application and found complainant �qualified�
because the position description and the GS-1550 standards did not agree.
The FAD found that even though complainant was found to be �qualified�
he was not ranked high enough to make the Best Qualified list since the
cut off for the list was a score of twenty and complainant had been
ranked a seventeen. Additionally, the FAD maintained that although
complainant established a prima facie case of reprisal, the evidence
does not show that complainant's prior EEO activity was a factor in his
initial determination of �not qualified.� The FAD found that complainant
failed to show that the reasons articulated by the agency were pretextual
or that discriminatory animus against complainant's race, color, sex,
age and/or reprisal was involved.
On appeal, complainant contends that his application package was
evaluated by the subject matter panel at a different time than the other
applicants and that the agency failed to consider a Standard Form 50-B,
(SF-50B), that was to be used to support his case, for the final decision.
The agency requests that we affirm its FAD because complainant's complaint
of being found �not qualified� is moot since the Director determined
that complainant was �qualified� and sent his packet to the rating panel
for evaluation. The agency also maintains that complainant's series was
changed to a GS-1550 so that he would not have any future problems with
qualifying for GS-1550-13
positions. The agency maintained that it went far beyond the requested
relief in the complaint and the Commission should declare complainant's
appeal moot and should dismiss the appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Hazen Paper Company v. Biggins, 507 U.S. 604, 610
(1993) (age had "a role in the process and a determinative influence on
the outcome"); 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 established a prima facie case of reprisal, race,
color, sex, and age discrimination since the selectee was a white female
under the age of 40 years with no prior EEO complaint activity. We also
agree with the agency that complainant established a prima facie case of
reprisal since he had prior EEO complaint activity, personnel officials
were aware of the prior activity and complainant was initially found to
be �not qualified.� Nevertheless, the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that complainant was
found �not qualified� by two different sources because his series (GS-334)
did not qualify him under OPM standards. The record reveals however,
that complainant was later found to be �qualified� and his application
was processed like the other applications. With respect to complainant's
allegation of reprisal, the agency indicated that the individuals involved
in finding complainant �not qualified� and those who served on the rating
panel, were not personally involved in complainant's prior complaint.
As such, the agency maintained that complainant failed to establish a
nexus between his prior EEO activity and the decision to find complainant
�not qualified.� With regard to complainant's allegations on appeal, the
agency maintained that complainant's promotion package was evaluated by
the same panel members using the same scoring criteria as all of the other
promotion packages. The agency maintained that the reason complainant's
application was scored at a different time was because of the attempt
to informally resolve his complaint. With respect to not considering
the SF-50B form, the agency maintained that the change in series was
based upon additional information submitted by complainant after the
complaint was filed and since complainant was found �qualified�, there
is no evidence that any harm resulted from its failure to be considered.
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. In reaching this conclusion, we
note that the agency's actions were attempts to resolve complainant's
complaint informally and there is no evidence that any of the actions
of the personnel office negatively influenced the rating panel or caused
complainant not to be selected for the position.
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
January 29, 2002
__________________
Date
1 Two other candidates were also rated ineligible for the position.
They failed to meet the area of consideration limitation.