01974246
03-13-2000
Verdoster Ingram, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Verdoster Ingram v. Department of Justice
01974246
March 13, 2000
Verdoster Ingram, )
Complainant, )
) Appeal No. 01974246
v. ) Agency Nos. D913162
) D943270
) Hearing Nos. 100-95-7399
Janet Reno, ) 100-95-7638
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final
decision (FAD) concerning his Equal Employment Opportunity (EEO)
complaint of unlawful employment discrimination on the bases of race
(African-American), age (Date of Birth: September 5, 1942), and reprisal
(prior EEO activity) in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
Complainant alleges he was discriminated against when: (1) he was not
selected for the Supervisory Chemist position; (2) the agency instituted
policies and practices that had a disparate impact on African-Americans;
and (3) he received a lower performance appraisal in 1994. The appeal
is accepted in accordance with 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 agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has established, by
preponderant evidence, that the agency discriminated against him on the
bases of race, age, and reprisal.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a forensic chemist at the agency's Mid-Atlantic laboratory facility.
The complainant applied for a Senior Chemist position in May 1991. When
he did not receive the promotion, he sought EEO counseling and filed a
formal complaint on November 11, 1991 (Complaint 1, Agency No. D-91-3162).
In Complaint 1, the complainant alleged that he was discriminated against
on the bases of race, age, and reprisal when he was not promoted. Also,
he alleged race discrimination (disparate impact) through the policies,
practices, and procedures utilized to make job assignments.
During the investigation of Complaint 1, the complainant received a
"Fully Successful" performance evaluation for the July 1, 1993 through
June 30, 1994 rating period. Complainant filed a formal complaint on
September 3, 1994 (Complaint 2, Agency No. D-94-3270). In Complaint 2,
the complainant alleged that he was discriminated against on the bases of
race, age, and reprisal when he received the lower performance evaluation.
At the conclusion of the investigations, complainant received a copy of
the investigative reports for both complaints and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing on August
8, 9, and 14, 1996, the AJ issued a recommended decision ("RD") finding
no discrimination.
In Complaint 1, the AJ concluded that complainant established a
prima facie case of race and age discrimination with respect to his
non-selection. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that
the selectee received higher ratings on the Job Candidate Rating Sheet
than the complainant. The complainant only received 60 points while
the selectee received 76 points. The complainant scored higher than
the selectee in a few areas based on his advanced degree, chemical
research, and volunteer work. However, because of his "excellent"
performance evaluation and glowing report from his supervisor, the
selectee received more points in the areas of performance, experience,
and in supervisory potential. The AJ found that complainant did not
establish that, more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination/retaliation.
The AJ also concluded that complainant failed to show that the
agency's assignment practices had an adverse affect on Black chemists.
The complainant offered statistical evidence that the Black chemists
received more assignments than the White chemists. The sampling technique
compared a random sample of the White chemist's assignments to all of
the complainant's assignments. However, this evidence did not show that
Black chemists or the complainant received more assignments. The evidence
indicated to the AJ that the complainant received less multiple package
assignments than the other chemists and that the complainant was one of
the lowest producers for the lab. The AJ concluded that the assignment
practices were not discriminatory.
In addition, the AJ concluded that the complainant had not established
a prima facie case of reprisal discrimination regarding all of the
issues presented at the hearing. The complainant did not prove that
he participated in a prior EEO activity, that the agency officials knew
about this protected activity, or that there was a causal link between
the protected activity and the adverse employment action. Therefore,
the AJ did not consider reprisal discrimination in either complaint.
Regarding Complaint 2, the AJ concluded that complainant established
a prima facie case of discrimination with respect to his "Fully
Successful" 1994 Performance Evaluation. The AJ then concluded that
the agency articulated legitimate, nondiscriminatory reasons for its
actions, namely, that the complainant turned in assignments late, was
"backed-up" due to poor organization, had poor analytical practices,
exhibited sloppy workmanship, and was careless in his analytical duties.
In reaching this conclusion, the AJ found that the complainant had not
fulfilled the requirements to receive a higher rating (such as being
published or developing a specialization on a particular instrument that
was used in the laboratory). The AJ found that complainant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination/ retaliation.
The agency issued its FAD on March 31, 1997, concurring with the AJ's
recommended decision.
On appeal, complainant restates arguments previously made at the hearing.
The agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's findings of no discrimination summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant. We discern no
basis to disturb the AJ's findings of no discrimination. 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 agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
03/13/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1 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.