01A11319
06-26-2001
Ulric Wair, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Ulric Wair v. HHS
01A11319
06-26-01
.
Ulric Wair,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A11319
Agency No. 98-022-HCF
Hearing No. 100-AO-7308X
DECISION
Complainant timely initiated an appeal from the agency's final decision
of September 25, 2000, 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. � 2000 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 claims that he was discriminated against on the bases of race
(Black), sex (male), and age (55) when, on or about November 19, 1997,
he was not selected for one of two Public Affairs Specialist, GS-1035-13,
positions (the Positions) announced under Vacancy Announcement #RN-97-039.
Complainant filed a formal complaint raising the issue above. Following
the issuance of the Report of Investigation, complainant requested a
hearing before an EEOC administrative judge (AJ). The agency filed
a motion for summary judgment which was granted by the AJ.<1> The AJ
then issued a decision without a hearing which found no discrimination.
The agency adopted the AJ's decision as its final order. Complainant now
appeals the final order.
The record shows that in October 1997, the agency issued a vacancy
announcement (VA) for two Public Affairs Specialist positions.
In November 1997, complainant applied for the Positions. Applicants were
rated by an agency Personnel Management Specialist and five applicants,
including complainant, were listed on the Certificate of Eligibles
(the Certificate). Complainant was ranked fifth on the Certificate. The
Certificate was then forwarded to the selecting official (SO) (36, male,
White). The Certificate provided that the SO could make a selection from
any of the top three candidates on the Certificate but could not select a
non-veteran whose name was listed below that of a veteran. The SO chose
the top two applicants on the Certificate. The selectees were 48, female,
White; and 39, male, White, respectively.
Assuming that complainant established a prima facie case of age, sex,
and race discrimination, the AJ found that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the selectees were chosen because they were ranked first and second on
the Certificate while complainant was not ranked among the Certificate's
top three rated applicants.
Further, the AJ found that complainant failed to prove pretext.
The AJ was not persuaded by complainant's argument that the length of
his experience with the agency rendered him better qualified for the
Position than the selectees. The AJ concluded that length of experience,
alone, did not render complainant more qualified for the Position.
The AJ also considered complainant's argument that the knowledge, skills,
and abilities (KSAs), used to rate the applicants, were manipulated and
adjusted in order to exclude complainant from selection because of his
age, sex, and race. However, the AJ found that complainant failed to
show that any pre-selection or favoritism which might have occurred was
based on illegal discriminatory reasons.
After a careful review of the entire record, the Commission concludes that
the AJ properly issued a decision without a hearing, accurately set forth
the relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. Based on a thorough review of the
record, including the parties' statements on appeal and all evidence
and arguments not specifically mentioned herein, the Commission finds
no basis to disturb the AJ's finding of no discrimination. Complainant
simply failed to prove his argument that his qualifications exceeded
those of the selectees. He also failed to present any other evidence
which persuades the Commission that his age, sex, or race influenced
the agency's decision. We note that there is no evidence that the
Personnel Specialist, who initially rated the applicants, was aware
of their age or race when she made her decisions. Accordingly, it is
the decision of the Commission to AFFIRM the agency's final decision
because complainant failed to prove, by a preponderance of the evidence,
that he was discriminated against on the bases of his age, sex, or race.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
_____06-26-01_____________
Date
1 The record shows that complainant did not file with the AJ a response
to the agency's motion.