05a00735
08-28-2000
Bennet F. Love, Jr., Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Security Service), Agency.
Bennet F. Love, Jr. v. Department of Defense
05A00735
August 28, 2000
.
Bennet F. Love, Jr.,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Security Service),
Agency.
Request No. 05A00735
Appeal No. 01A00211
Agency No. DSS-98-022-15-M
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Bennet
F. Love, Jr. v. Department of Defense, EEOC Appeal No. 01A00211 (March
24, 2000).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
determined that the agency did not discriminate against complainant on
the bases of sex (male), race (Caucasian), color (white), and age (DOB:
September 28, 1948) when he was not selected for one of six positions as
Supervisory Investigative and Security Specialist (Specialist position).
BACKGROUND
Complainant was a Supervisory Investigator, GS-12, in the Baltimore
Investigative Field Office, Towson, Maryland, from May 1986 to May
1998, and then employed as a Senior Investigator, GS-12, in the Greater
DC-Baltimore Operating Location, Hanover, Maryland. Complainant applied
for one of six Specialist positions, GS-13, in the Hanover Office under
Job Opportunity Announcement Number DIS-98-1783-DA. He was informed of
his non-selection on May 11, 1998. On July 27, 1998, complainant filed
a formal EEO complaint alleging discrimination as referenced above when
he was not selected for the position and when he was assigned from his
Supervisory position to the non-supervisory Senior Investigator position.
The agency dismissed the assignment issue for failure to contact the EEO
Office in a timely manner.<2> On September 7, 1999, the agency issued
its final decision (FAD) finding that it did not discriminate against
complainant when it failed to select him for the Specialist position.
In its FAD, the agency found that complainant established a prima facie
case of race, color, sex, and age discrimination. The burden then shifted
to the agency to articulate a legitimate, nondiscriminatory reason.
The FAD found that the agency did so and the burden then returned to
complainant to demonstrate that the agency's reasoning was pretext
for discrimination. The FAD found that complainant failed to do so.
Accordingly, the FAD determined that the agency did not discriminate
against complainant.
Complainant filed an appeal with the Commission. The previous decision
summarily affirmed the FAD. In particular, the previous decision
determined that based upon review of the record in its entirety, including
consideration of all statements submitted on appeal, that the record did
not establish by the preponderance of the evidence that discrimination
occurred.
In his request for reconsideration, complainant argues that the
previous decision was clearly erroneous based on material fact and that
the Commission failed to see through the agency's false statements.
Further, complainant notes that the previous decision would have an
adverse impact on employees of the agency by allowing the agency to
continue its �business plan�.<3>
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973);
Loeb v. Textron, 600 F.2d 1003(1st Cir. 1979). 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. United States
Postal Serv. Bd. 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 Servs.,
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 did not select complainant for one of the six
Specialist positions because the selecting officials determined that
complainant was not one of the top six candidates for the position.
Namely, the agency argues that the selecting officials created an
evaluation matrix which was used by the three person interview panel.<4>
Based on numbers generated by the matrix, the selecting officials
ranked the candidates. Further, the selecting officials reviewed the
candidates' individual skills performance, achievements, and how the
candidates would operate a team of employees. After a review of the
criteria listed above, the agency selected six of the candidates for
the open Specialist positions. The agency argued that the six selectees
were better qualified than complainant for the positions. We find that
the agency has articulated a legitimate, nondiscriminatory reason for
its action.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the complainant to demonstrate that the
agency's articulated reason was a pretext for discrimination. We find
that complainant has failed to do so. Complainant did not show that the
agency's reasoning was based on a discriminatory animus against his sex,
race or age. Beyond his conclusory statements that the selection was
discriminatory, there is no evidence in the file to show that this was
the case. Therefore, the previous decision's affirming of the FAD which
determined that complainant failed to establish that he was discriminated
against was correct.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A00211 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 28, 2000
__________________
Date
1On 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.
2Complainant failed to appeal the agency's dismissal to the Commission,
therefore, the dismissal of the assignment claim will not be addressed
in this decision.
3The Commission also notes that complainant stated that the previous
decision denied him his �day in court� and requested that the Commission
reopen the case on its own motion for further investigation and demand
more details from the agency pertaining to the selection process in
this case. Complainant was provided with the opportunity to request a
hearing before an EEOC Administrative Judge at the conclusion of the
agency's investigation. Complainant's concerns would have been best
addressed in such a hearing.
4The matrix allowed the panel to evaluate the candidates based on the
critical elements of: (1) Understanding Policy and Procedures of the
Industrial Security and Personnel Security missions; (2) Team Structure;
(3) Business Process Innovation; (4) Productivity Measurement and
Improvement Plan; (5) Building/Maintaining Interrelationships with Defense
Security Service and non-Defense Security Service servicing components;
(6) Building/Maintaining Customer Relations; and (7) Resource Management.