02990003
03-16-2000
Willy J. Hardin, Complainant, J. Brian Atwood, Administrator, Agency for International Development (AID), Agency.
Willy J. Hardin v. Agency for International Development (AID)
02990003
March 16, 2000
Willy J. Hardin, )
Complainant, )
)
) Appeal No. 02990003
)
J. Brian Atwood, )
Administrator, )
Agency for International )
Development (AID), )
Agency. )
)
DECISION
INTRODUCTION
On November 13, 1998, Willy J. Hardin (the complainant) filed an appeal
with the Equal Employment Opportunity Commission (the Commission) from
a final (third-step) agency decision dated October 7, 1998, concerning
his grievance filed against the agency dated April 29, 1998.<1> In his
grievance, complainant alleged that the agency discriminated against him
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act
(ADEA) of 1967, as amended, 29 U.S.C. � 621 et seq. The Commission hereby
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant failed to prove that the agency discriminated against him
based on race, sex, age and retaliation when he was judged unqualified
for consideration at the GS-12 level, and was subsequently not selected
for a position to which he had applied.
BACKGROUND
Complainant filed a grievance on April 29, 1998, regarding his
non-selection for the position of Public Affairs Specialist (the
Position), and regarding the agency's determination that he was
not qualified for consideration for the Position at the GS-12 level.
He claimed that he had been discriminated against on the bases of race
(Black), sex (male), age (DOB: 2/19/40) and retaliation (prior EEO
activity). The Position was advertised as a GS-9/11/12 position, with
promotion potential to the GS-12 level, if initially filled at the GS-9 or
GS-11 level. The Vacancy Announcement specified that applicants needed
one year of specialized experience "in or directly related to the line
of work of the position," and that "to be creditable, this experience
must have been at least equivalent to the next lower grade level in
Federal Service." Complainant alleged that he had been disqualified
for merit promotion consideration at the GS-12 level for discriminatory
(among other improper) reasons. He was instead given the opportunity to
be interviewed for the Position at the GS-11 level, but was not selected.
In its third-step agency decision, the deciding official found that
complainant had been properly classified as not having the requisite
"specialized experience" at the next lowest level of the position in
question. In other words, complainant did not have the experience at the
GS-11 level that would qualify him to immediately move into the Position
at a GS-12 classification, which he indicated on his application was his
preference. She found that while complainant had general experience that
would have rendered him qualified for the position at the GS-11 level,
his experience was not specialized enough to promote him to the GS-12
position directly from his current position, as a Loss/Damage Claims
Examiner, GS-11. The decision also found that complainant had not shown
that the agency's reasons for not classifying him at the GS-12 level, and
for not selecting him for the Position, were a pretext for discrimination
based on his race, sex, age or prior EEO activity.
Complainant also claimed that he had been discriminated against regarding
his initial hiring grade level and several other promotions, dating
from September 1989 to January 1998.<2> The agency decision found
that these issues were untimely raised under the collective bargaining
agreement between the agency and the union, and denied the portion of
the grievance pertaining to those issues. This appeal followed.
ANALYSIS AND FINDINGS
The EEOC Regulation found at 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.401(d)), provides
that a grievant may appeal to the Commission from a final decision of
the agency, the arbitrator or the Federal Labor Relations Authority on
a grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised.
The Commission's regulations, in conjunction with 5 U.S.C. � 7121(d)
of the Civil Service Reform Act, provide that where a negotiated
grievance procedure permits an allegation of discrimination to be
raised and considered, an employee wishing to raise an allegation of
discrimination must elect the forum in which to pursue the matter.
Thus, such a complaint of alleged employment discrimination may be
raised under either the statutory procedure (EEO process) or the
negotiated grievance procedure, but not both. 29 C.F.R. � 1614.301.
If the employee should elect to raise an issue of discrimination in a
negotiated grievance procedure, the employee has the right to appeal the
agency's final decision on the grievance concerning the discrimination
issue to the Commission. 29 C.F.R. � 1614.401(d).
The record of the present case establishes that the agency's grievance
procedure gives employees the option of raising employment discrimination
claims. Pursuant to this right, complainant filed the present grievance
raising allegations of discrimination. Under these circumstances, the
Commission has the authority to review the agency's grievance decision
on complainant's discrimination claims, and the present appeal from that
decision is properly before the Commission.
The agency found that under the grievance procedure outlined in the
collective bargaining agreement between the agency and the union, the
complainant had untimely raised issues in his grievance. In Johnson
v. Equal Employment Opportunity Commission, EEOC Request No. 05910188
(March 20, 1991), the Commission held that it does not have jurisdiction
to review procedural determinations by an agency solely related to the
grievance process and the collective bargaining agreement, such as the
timeliness of the filing of the grievance or the timeliness of filings
of appeals from the original Step 1 decision. Therefore, we find that we
do not have jurisdiction to review complainant's appeal on these issues.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to complainant's claims of discrimination, the agency
presented evidence that it had properly classified complainant for
consideration for the Position at the GS-11 level, and not at the GS-12
level, due to his lack of specialized experience relevant to the job
duties of the Position. The Selecting Official would have filled the
Position at the GS-12 level only with a person who would have needed
no further training on the performance of the duties, which she felt
complainant would need given his background. The agency also stated that
complainant had been fairly considered along with the other applicants
for the Position and that the selectee for the Position, who was hired
at the GS-9 level, was regarded by the Selecting Official as having
demonstrated that she was the stronger candidate based on her writing
and research abilities, her interpersonal skills and her ability to be
"team-oriented, self-directed and motivated." We find that the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Since the agency articulated legitimate, nondiscriminatory reasons for
its actions, the burden returns to the complainant to demonstrate that the
agency's articulated reasons were a pretext for discrimination. We find
that complainant has failed to do so. Although the complainant argued
extensively that the agency had engaged in a pattern of discriminating
against him based not only on his race, age and sex and in retaliation
for previous EEO activity, he also alleged that the agency was improperly
motivated by his complaints to the agency's Inspector General regarding
alleged waste, fraud and abuse. He further claimed that his complaints
regarding other alleged violations by the agency of government regulations
and statutes motivated the agency's actions, and that his status as a
disabled veteran had not been properly taken into account when qualifying
him for the Position. After a review of the record in its entirety,
we find that the agency properly determined that complainant was not
qualified at the GS-12 level, given that the specialized experience he
claimed to have was more accurately deemed to be only relevant general
experience for the Position. We also note that the fact that the
selectee for the Position was a Black female only four years younger than
complainant strongly contradicts his claims of race and age discrimination
because she was of the same race as complainant and close in age to him.
We therefore find that complainant did not show that the agency engaged
in discrimination when it chose the selectee for the Position over him.
Therefore, the agency's determination that complainant failed to establish
that he was discriminated against was correct.
Accordingly, the decision of the agency was proper and is AFFIRMED.
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:
March 16, 2000
______________ __________________________________
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
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.
2 At least two of the non-selections which complainant referenced
were the subject of a separate complaint, pursued through the EEO
process, and were appealed to the Commission in Hardin v. Agency for
International Development (AID), EEOC Appeal No. 01974241 (July 2, 1999).
In that appeal, the Commission affirmed the agency's adoption of an EEOC
Administrative Judge's Recommended Decision finding no discrimination.