01985969
02-02-2000
Wayne T. Moore, )
Complainant, )
) Appeal No. 01985969
v. ) Agency No. 0131-95060
) Hearing No. 250-95-8197X
Craven H. Crowell, Jr., )
Chairman, )
Tennessee Valley Authority, )
Agency. )
)
DECISION
In accordance with the provisions of Equal Employment Opportunity
Commission (EEOC or Commission) Order No. 960.001, complainant's appeal
from the agency's final decision in the above-captioned matter has been
accepted by the Commission.<1> For the reasons that follow, it is the
decision of the Commission to AFFIRM AS MODIFIED the agency's final
decision, which adopted the recommended findings and conclusions of the
Administrative Judge (AJ) issued pursuant to a summary judgment decision.
The AJ found that complainant failed to establish a prima facie case
of discriminatory non-selection based on race (Black), under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
because he failed to establish that similarly situated individuals outside
his protected class were treated more favorably. The AJ reasoned that
the selectee and complainant were not similarly situated because the
selectee was more qualified for the position at issue. This is incorrect.
As long as the complainant applied and was qualified for the position
at issue, and the selectee is outside complainant's protected class,
the complainant has established a prima facie case of discriminatory
non-selection. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Any evidence regarding the selectee's superior qualifications is only
considered in the subsequent steps of the McDonnell Douglas indirect
evidence analysis.
We also note that while comparative evidence is usually used to
establish disparate treatment, in order to establish a prima facie
case a complainant need only set forth some evidence of acts from
which, if otherwise unexplained, an inference of discrimination can be
drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
This evidence can be, but need not be, evidence regarding differential
treatment of similarly situated employees outside complainant's protected
class. For example, in the instant case, complainant contends that
the selection criteria used for the foreman position at issue were
inconsistent with the provisions of the governing union agreement.
Record of Investigation (ROI), Exhibit 1 at 13-14, 17-18; Exhibit 11 at
B-III.d.1. If established, such evidence could also have been sufficient
in and of itself to establish a prima facie case.
However, while we find that complainant established a prima facie case,
we nonetheless conclude, based on our review of the record, that the AJ
correctly concluded in the alternative that complainant failed satisfy
his burden to prove that, more likely than not, his non-selection was
motivated by race discrimination.
Accordingly, based on our review of the record, we discern no basis
to disturb the AJ's findings and conclusions, which gave full and fair
consideration to the issues presented. Therefore, after a careful review
of the record, including any appeal contentions by the parties, and any
other arguments and evidence not specifically addressed in this decision,
we AFFIRM AS MODIFIED 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:
February 2, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations1 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.