01A05497
08-27-2002
George D. Prewitt, Jr., Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
George D. Prewitt, Jr. v. Department of the Army
01992553; 01A05497
August 27, 2002
.
George D. Prewitt, Jr.,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 01992553; 01A05497
Agency Nos. AWGRP980210110; AWGRFO9611G0540
Hearing Nos. 130-98-8212X; 130-AO-8061X
DECISION
Complainant timely initiated appeals from the agency's final decisions
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeals
are consolidated because they both relate to the same underlying claim
(29 C.F.R. � 1614.606) and accepted pursuant to 29 C.F.R. � 1614.405.
In his underlying complaint, complainant alleges that the agency's
selection procedures have a disparate impact on African-American males
and veterans who have a Department of Veterans Affairs certified connected
disability of thirty percent or more. In particular, complainant alleges
he was discriminated against on the bases of race (African-American),
sex (male), and age (not specified) when on or about October 4, 1996,
he was not selected for the position of Equal Opportunity Assistant (�EO
Assistant�), GS-361-06 (temporary, not to exceed one year). For the
following reasons, the Commission AFFIRMS the agency's final decisions.
On or about September 12, 1996, the agency issued Vacancy Announcement
Number 96-09-01AD, which solicited applicants for the position of EO
Assistant at the agency's Vicksburg District facility. In a letter
dated September 17, 1996, complainant submitted his application for
the vacancy that had been advertised by the agency. In his letter,
complainant stated that (1) he was a disabled veteran, with a service
connected disability, rated at 30 percent or more; (2) he had a juris
doctorate from the University of Mississippi; and (3) he had been in
government-related employment with the United States Postal Service,
from which he resigned in 1990. In a letter dated October 3, 1996,
complainant was informed by the agency that his name had not been referred
for selection consideration because his application failed to include
enough information upon which to determine that he met the qualification
requirements for the position. Subsequently, two candidates, one White
female and one Black female, were referred for selection consideration.
The Black female was selected for the position.
Complainant filed a formal EEO complaint with the agency on November
27, 1996, alleging that the agency had discriminated against him as
referenced above.
In March 1997, as part of the agency's investigation of this complaint,
its Office of Complaint Investigations (OCI) conducted a fact-finding
conference. For reasons not entirely clear from the record, by letter
dated July 30, 1997, the Commission's Birmingham District Office, referred
the matter to the Vicksburg Office for further investigation concerning
the question of disparate impact. The letter also stated that it was not
clear whether complainant was interested in pursuing a class complaint
on behalf of African-American males with disabilities. On December 15,
1997, an OCI investigator conducted another fact-finding conference and
concluded that complainant was pursuing a class complaint. On January
30, 1998, the agency's EEO officer determined that complaint failed to
meet the criteria for class certification and the agency thereafter
referred the class complaint to an EEOC Administrative Judge (�AJ�).
On January 11, 1999, the AJ found that the complaint did not meet the
regulatory requirements for class certification, as set forth in 29
C.F.R. � 1614.204(a)(2). The agency adopted the AJ's recommendation to
deny class certification and complainant, as class agent, timely filed
an appeal which was docketed as EEOC Appeal No. 01992553.
Thereafter, the agency then processed the claim as an individual
complaint. 29 C.F.R. � 1614.204(d)(7). At the conclusion of the
investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge, and
the matter was assigned to the same AJ who had issued the recommended
decision on class certification. On June 9, 2000, the AJ issued a
decision without a hearing, finding no discrimination.
The AJ initially discussed complainant's failure to comply with various
orders during the hearing phase, including his failure to identify any
proposed witnesses despite two (2) orders to submit a witness list.
Although of the opinion that the matter therefore could be dismissed
(see 29 C.F.R. � 1614.109(f)(3)), the AJ concluded that sufficient
information existed in the record to dispose of the claims. The AJ
found that complainant failed to establish a prima facie case of
disparate treatment based on race, sex, and/or age. Specifically, the
AJ found that complainant failed to demonstrate that similarly situated
employees not in his protected classes were treated differently under
similar circumstances. In any event, the AJ further concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions
which complainant failed to prove were a pretext for discrimination.
With respect to complainant's contention that the agency's actions
constituted disparate impact discrimination, the AJ found that complainant
had failed to establish that the facially neutral standard in question
affects those individuals within the protected group in a significantly
discriminatory pattern and, thus, did not establish a prima facie case
of disparate impact.
The agency's final decision implemented the AJ's decision. Complainant
timely appealed and the appeal was docketed as EEOC Appeal No. 01A05497.
On appeal, complainant contends, inter alia, that the AJ erred when
he failed to conduct a disparate impact investigation. In response,
the agency restates the position it took in its FAD, and requests that
we affirm its final decision.
ANALYSIS AND FINDINGS
EEOC Appeal No. 01A05497
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Disparate Impact
In order to establish disparate impact discrimination, complainant must
show that a facially neutral practice of the agency has a disproportionate
effect on a protected group of which he is a member. See, e.g., Stocker
v. Department of the Interior, EEOC Petition No. 03970086 (May 7, 1998).
In order to show that a challenged practice disproportionately impacts
members of a protected group, complainant must: (1) identify the specific
practice or practices being challenged; (2) show relevant statistical
disparities; and (3) show that the disparities are related to the
challenged practice. Id.
Although an agency has �the burden of showing that any given requirement
must have a manifest relationship to the employment in question,� such
a formulation should not be interpreted as implying that the ultimate
burden of proof can be shifted to the agency. Griggs v. Duke Power,
401 U.S. 424, 432 (1971). On the contrary, the ultimate burden of
proving that discrimination against a protected group has been caused by
a specific employment practice remains with complainant at all times.
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 997. Thus, when
complainant has made out a prima facie case of disparate impact,
and when the agency has met its burden of producing evidence that
its employment practices are job related and consistent with business
necessity, complainant must �show that other tests or selection devices,
without a similarly undesirable racial effect, would also serve the
employer's legitimate interest[s] . . .� Albermarle Paper Co., v. Moody,
422 U.S. 405, 425 (1975). Practices or procedures, neutral on their
face and even neutral in terms of intent cannot be maintained if they
operate to freeze the status quo of discriminatory employment practices.
See Watson, 487 U.S. at 997-98.
Initially, we find complainant's contentions on appeal to be
without merit. The record reflects that complainant did not comply
with the AJ's orders and any failure to produce evidence relating to
complainant's claims cannot be attributed to any error on the part of
the AJ. Upon review, the Commission finds that complainant has failed to
establish a prima facie case of disparate impact. The specific practice
challenged by complainant as resulting in his name not being forwarded
to the selecting official for consideration is the requirement that an
applicant for employment provide sufficient information from which to
determine the applicant's qualifications. The record establishes that
of the eight applicants who applied for the EO Assistant position, six
(i.e., complainant, two other Black males, two Black females and one White
female) were rated ineligible due to insufficient experience and/or for
failing to provide an adequate qualification statement. The record also
indicates that complainant was the only Black male veteran with a thirty
percent or more service connected disability who applied for the position.
We are not persuaded that the AJ erred in finding that the statistical
information proffered by complainant was inadequate.
Disparate Treatment
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions.<2>
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
After a careful review of the record, the Commission finds that the
AJ did not err when he concluded that there were no genuine issues of
material fact in this case. In finding no discrimination, the AJ relied
on the undisputed evidence regarding the agency's determination that
complainant failed to provide the information required to be considered
for the position.
The record establishes that, other than a letter asserting that he
had: a juris doctorate, prior federal service, and a service-connected
disability, complainant provided no application materials. The record
also reflects that the Office of Personnel Management, in a letter dated
March 17, 1997, informed complainant that the agency was within its
authority in determining that complainant had provided insufficient
information to make a judgment of his qualifications. Under these
circumstances, the Commission finds that the agency has articulated
a legitimate, nondiscriminatory reason for its actions. Bases on
the foregoing, we further find that complainant has failed to present
sufficient evidence to show that any of the agency's actions were pretext
for discriminatory animus.
EEOC Appeal No. 01992553
Given the disposition of the individual complaint, the Commission
declines to address whether the AJ properly denied class certification
and, therefore, closes the matters raised in EEOC Appeal No. 01992553.
CONCLUSION
For the reasons set forth above, and after a careful review of the
record, the Commission finds that the AJ correctly determined that there
were no genuine issues of material facts. We also find that the AJ's
decision summarized the relevant facts and reference the appropriate
regulations, policies, and laws. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision dated June 16, 2000, and close
EEOC Appeal No. 01992553.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 27, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Because we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions, we do not reach the issue of
whether complainant is a qualified individual with a disability.