01973523
08-19-1999
Warren T. Jones, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Warren T. Jones v. Department of the Army
01973523
August 19, 1999
Warren T. Jones, )
Appellant, )
) Appeal No. 01973523
v. ) Agency No. ABBHF0509F1740
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (African-American) and sex (male), 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 he was not selected
for the position of Logistics Management Specialist, GS-0346-12, in the
agency's Weapons Systems Management Directorate. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED AS CLARIFIED.
The record reveals that during the relevant time, appellant was employed
as a Supply Systems Analyst, GS-2003-11, in the agency's Weapons Systems
Management Directorate, U.S. Army Aviation and Troop Command, St. Louis,
Missouri. Appellant alleged that he applied for the position and was
referred for consideration with fourteen other candidates to the Selecting
Official (SO), who was appellant's supervisor at the time. However,
appellant was not selected for the position and the SO selected two other
candidates (S1:Caucasian male; S2: Caucasian female) despite appellant's
assertion that he had more logistics experience and superior training than
both selectees and superior educational credentials than S2. Believing
he was a victim of discrimination, appellant sought EEO counseling and,
subsequently, filed a complaint on August 25, 1995. At the conclusion
of the investigation, appellant was informed of his right to request
a hearing before an Equal Employment Opportunity Commission (EEOC)
Administrative Judge, or request a final decision by the agency.
After failing to respond within the appropriate time frame, the agency
issued its FAD.
The FAD concluded that appellant failed to establish a prima facie
case of race and sex discrimination. The FAD found that although
appellant is a member of protected groups and was adversely affected
by the agency's failure to select him for the position in question, he
failed to demonstrate that he was treated less favorably than similarly
situated individuals outside his protected groups or that there was
discriminatory animus involved in his nonselection. The FAD further found
that assuming appellant had established a prima facie case of race and/or
sex discrimination, management articulated legitimate, nondiscriminatory
reasons for not selecting appellant, namely, that all the applicants for
the position were evaluated under a uniform, equally-applied criteria
and appellant was determined to be less qualified than the selectees
and another candidate who turned down the position. The FAD also found
that appellant failed to present evidence or documentation to confirm his
allegations that his nonselection was based on race or sex. On appeal,
appellant contends that the agency failed to consider a number of his
arguments.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), the Commission initially disagrees with the FAD
and finds that appellant established prima facie cases of race and sex
discrimination, as he was deemed qualified for the position in question
and was referred to the SO for consideration, but was not selected
in favor of persons outside his protected classes.<1> Nevertheless,
after a careful review of the record, we agree with the FAD's finding
that the agency articulated legitimate, nondiscriminatory reasons for
the selection of S1 and S2. In reaching this conclusion, we note that
the SO credibly testified that the selectees were chosen after he scored
the candidates based on experience (35%), interview (25%), appraisals
(15%), education (10%), training (10%) and awards (5%). The SO stated
that appellant was ranked below the selectees as he received an "above
average" on the interview and appraisal elements, while the selectees
received "superior" ratings on these elements, and all of the referred
candidates were rated as "superior" in the experience element. We also
find that appellant failed to present evidence that more likely than
not, the agency's articulated reasons for its actions were a pretext for
discrimination, as appellant's qualifications are not observably superior
to those of the selectees. As a result, we find that appellant has
provided insufficient evidence to show that the SO had a discriminatory
motive for not selecting him for the position in question.
Therefore, after a careful review of the record, including appellant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, the FAD is AFFIRMED AS CLARIFIED.
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:
8/19/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Commission notes that appellant has established a prima facie case
of sex discrimination due to the selection of S2 (female), but not with
the selection of S1 (male).