Verdoster Ingram, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 13, 2000
01974246 (E.E.O.C. Mar. 13, 2000)

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.