Cleavester Ferrell, Jr. v. Department of Housing and Urban Development 01983522 January 7, 2000 Cleavester Ferrell, Jr., ) Complainant, ) ) ) Appeal No. 01983522 ) Agency No. PH 96-02 Andrew M. Cuomo, ) Secretary, ) Department of Housing and Urban ) Development, ) Agency. ) ) DECISION Cleavester Ferrell, Jr. (complainant) timely initiated an appeal to the Equal Employment Opportunity Commission (EEOC) from the final decision of the agency concerning complainant's claim that the agency violated 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 of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The appeal is accepted in accordance with EEOC Order No. 960, as amended.<0> The issue on appeal is whether the agency discriminated against complainant on the bases of of race (Black), age (51), and religion (Baptist) when he was not selected for the position of Construction Analyst, GS-0828-13, advertised under Vacancy Announcement Number 03-MS3-95-0020z. Complainant filed a formal EEO complaint raising the issue stated above and a formal investigation was conducted. Thereafter, the agency issued a final agency decision (FAD) which found no discrimination. The agency found that complainant established a prima facie case of age and religious discrimination. The agency found that complainant did not establish a prima facie case of race discrimination primarily because the selectee was also Black. The agency also concluded that it articulated a legitimate, nondiscriminatory reason for its action, namely that the complainant, according to the selecting official (SO), was not the most qualified candidate for the position. Rather, according to the agency, the selectee was chosen because of his combination of experience and professional qualifications related to the quality ranking factors used. Last, the agency found that complainant failed to prove pretext. The agency rejected complainant's argument that the SO would have selected a younger, White, applicant if there had been one on the Best Qualified List and that the SO instead chose the youngest, Black applicant who agreed with his religious belief, atheism The agency also found that complainant did not support his claim that the SO had been known to make discriminatory insulting remarks about older, Black employees. In this regard, the agency noted that of twelve witnesses interviewed, only two provided testimony that even vaguely supported this claim and these two witnesses had not heard the SO make any specific derogatory comments about older, Black employees. Finally, the agency emphasized that none of the statistical evidence suggested that the SO, in previous selection processes, based his choices on the candidates' race, religion, or age. Complainant's complaint constitutes a claim of disparate treatment and the agency properly analyzed it under the three-tiered analytical framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also St. Mary's Honor Center v. Hicks, 5 09 U.S. 502 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-256 (1981). The Commission's analysis need not focus on the establishment of the prima facie case where, as here, the agency has articulated a legitimate, nondiscriminatory reason for its actions. Washington v. Dept. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Applying these legal standards, the Commission finds that the agency correctly determined that complainant failed to prove, by a preponderance of the evidence, that he was discriminated against because of his race, religion or age. Complainant claimed, generally, that the SO was biased against older, Black individuals and individuals of different religious beliefs. However, we agree with the agency that complainant submitted no persuasive evidence to substantiate these contentions. Moreover, complainant presented no persuasive evidence that his qualifications were superior to those of the selectee's qualifications. Complainant also failed to rebut specific points made by the SO regarding complainant's credentials, i.e., that: (1) complainant generally resisted implementation of any streamlined, processing techniques; and (2) complainant was sometimes abrasive and belligerent. Complainant also did not adequately rebut the SO's testimony that the selectee had a better understanding of the "entire underwriting process and particularly the evolution of the agency into a customer driven enterprise." Accordingly, for these reasons and after careful consideration of the entire record, we find that complainant failed to prove, by a preponderance of the evidence, that he was discriminated against on the bases of his race, religion or age. 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: Jan. 7, 2000 DATE Carlton 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: 01. 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 of 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.