01985103
08-10-2000
Samuel Johnson, Jr., Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Samuel Johnson, Jr. v. HUD
01985103
08-10-00
.
Samuel Johnson, Jr.,
Complainant,
v.
Andrew M. Cuomo,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01985103
Agency No. FW-96-43
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the
agency concerning his claim that the agency violated 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.<0> The appeal is accepted by the Commission in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the complainant has established that
the agency discriminated against him based on race (Native American),
sex (male), physical disability (mobility and hearing impairments),
and reprisal (prior EEO activity) when he was not selected for one
of three vacancies for the position of Real Estate Owned Specialist,
GS-1101-05/07, in June 1996.
BACKGROUND
The complainant filed a formal complaint in August 1996 in which he
raised the issue identified above. Following an investigation, the
complainant did not request a hearing and the agency thereafter issued
a final decision (FAD) dated June 1, 1998, finding no discrimination.
It is from this decision that the complainant now appeals.
During the period in question, the complainant was employed as a Program
Assistant, Real Estate Owned Branch (REO), Single Family Housing Division,
at the agency's facility in Fort Worth, Texas. In April 1996, the
complainant applied for the position of Real Estate Owned Specialist,
GS-1101-05/07 (the Position), which was located in REO. Although the
complainant made the list of �best qualified� candidates, he was not
selected in favor of three White females (the selectees).
The official (Selecting Official, SO) responsible for the selections
testified that he was looking for individuals who had knowledge
of property, work experience related to REO, and good technical and
communication skills. In this regard, the SO offered specific testimony
regarding why the selectees possessed experience in these areas and
also noted that each of them had consistently received ratings of
�Outstanding� on their annual performance appraisals. Conversely, the
SO stated that, although the complainant had many years of experience,
most of it was in a branch other than REO. He also testified that the
complainant's experience in certain areas was limited, including answering
correspondence and working with computers. Finally, the SO testified
that, with regard to the quality ranking factors, the complainant's
answers were not as thorough as those provided by the selectees.
ANALYSIS AND FINDINGS
Race, Sex, and Reprisal
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
is a three-step process. The complainant has the initial burden of
establishing a prima facie case. If the complainant meets this burden,
then the burden shifts to the agency to articulate some legitimate,
nondiscriminatory reason for its challenged action. The complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
articulated by the agency was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In this case, we find that, to the extent all three selectees are a
different race and sex than the complainant, he is able to establish a
prima facie case under those bases. See Bundy v. Jackson, 641 F.2d 934,
951 (D.C. Cir. 1981). We also find, however, that the complainant
is unable to establish a prima facie case of reprisal insofar as his
most recent EEO activity pre-dated his non-selection by five years. See
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
Because the complainant has established a prima facie case of race and sex
discrimination, the agency has the burden of articulating a legitimate,
nondiscriminatory reason for the challenged action. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). We find,
based on the SO's testimony pertaining to the selection process, that
the agency has met its burden.
At this point, the complainant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination. The
complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at
256. In a non-selection case, pretext may be demonstrated where the
complainant's qualifications are shown to be plainly superior to those of
the selectee(s). Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
An employer, however, has the discretion to choose among equally
qualified candidates so long as the decision is not based on unlawful
criteria. Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981).
Having carefully reviewed the evidence of record, the Commission finds the
complainant has not demonstrated that his qualifications for the Position
were �plainly superior� to those of the selectees. In attempting to
prove pretext, the complainant argues that the selectees had an unfair
advantage because the SO was the official who gave them the experience
that made them desirable for the Position. The Commission notes, however,
that the manner in which the selectees obtained their experience is not
the subject of this complaint.<2> For that reason, and in the absence
of any evidence suggesting that the complainant's non-selection was
discriminatorily motivated, we find he has not established that the
agency discriminated against him based on either race or sex.
Disability
Assuming, for purposes of analysis, that the complainant is disabled,
we have already found that the agency articulated a legitimate,
nondiscriminatory reason for his non-selection. Not only has the
complainant not demonstrated that this reason is unworthy of credence,
but he has offered nothing suggesting that his non-selection was related
to his disability. Accordingly, the Commission finds the complainant has
not established that he was discriminated against based on disability.
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
___08-10-00_______________
Date
01 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.
2We also find nothing in the record which suggests that there was anything
discriminatory in how the selectees obtained their experience.