01975582
09-03-1999
Virgil M. Lorenzo, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Education Activity), Agency.
Virgil M. Lorenzo, )
Appellant, )
) Appeal No. 01975582
v. ) Agency No. GE-FY93-08
) EEOC No. 100-94-7086X
William S. Cohen, )
Secretary, )
Department of Defense, )
(Education Activity), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of race (Asian-American) in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant
alleges he was discriminated against when on October 9, 1992, he was
non-selected for teaching positions with the Mannheim Middle School
and Mannheim High School in Mannheim, Germany. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was an
applicant for employment with both the Mannheim Middle School and Mannheim
High School. Appellant alleged that he applied for the positions and
was not selected, whereas the agency selected other applicants (white)
for the subject positions. Appellant alleges that he believes he is
being discriminated against because the number of minority students at
the schools greatly outnumber the number of minority teachers.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on March 5, 1993. At the
conclusion of the investigation, appellant requested a hearing, which
was scheduled for June 27, 1994 in Germany. Although the AJ and agency
witnesses appeared at the hearing, appellant's then attorney did not.<1>
On September 26, 1994, the AJ issued an Order of Remand to the agency
directing the agency to provide information as the costs which would be
incurred if another hearing was scheduled. The agency did not receive a
response from the AJ and represents that during a telephone conversation
with the District Office on April 21, 1994, it learned that appellant's
case had been closed. The agency then contacted the Office of Federal
Operations and learned that no appeals had been filed by appellant.
Thereafter, the agency issued a final decision, finding no discrimination.
The FAD concluded that appellant failed to establish a prima facie case
of discrimination because he failed to prove that he was qualified for
the position. Specifically, the agency found that a certification
association determined that appellant's qualifications as a science
teacher were not consistent with the required standards. As it was
found that appellant did not have the requisite credit hours required
for a science teacher, he was found to be not qualified for the position.
Furthermore, the agency found that it had articulated a legitimate,
nondiscriminatory reason for his failure to be selected, namely that
he was not qualified for the position. Finally, the agency found that
appellant failed to prove that this reason was pretext for discrimination.
On appeal, appellant contends that he is qualified for the position
in that he has taught such subjects in the past, and has received a
credentialing certificate. Appellant further argues that the agency
knew this, but did not choose to examine appellant's files contained at
another school. The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), the Commission agrees with the agency that appellant
failed to establish a prima facie case of race discrimination because
he failed to prove that he was qualified for the positions in question.
In reaching this conclusion, we note that appellant argues that he
holds a teaching certificate for science and other subjects, but does
not supply it for the record. As such, we find that the preponderance
of the evidence submitted for the record, which contains the findings
of the crediting association, does not support appellant's position.
Furthermore, although the record reveals that there was only one Asian
teacher employed by the schools at the time, appellant has not provided
statistics on the applicant pool sufficient to raise an inference of
discrimination. Appellant's own witness testified that although the
racial make-up of the Mannheim community has changed in the last number
of years, he did not believe appellant was discriminated against.
Therefore, after a careful review of the entire record, including
appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/03/99
DATE Carlton Hadden, Acting Director
Office of Federal Operations1It was understood that
appellant would not be appearing, and appellant's
attorney would act on his behalf.