_______________, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency,

Equal Employment Opportunity CommissionSep 10, 1999
01975611 (E.E.O.C. Sep. 10, 1999)

01975611

09-10-1999

_______________, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency,


_______________ v. Department of Agriculture

01975611

September 10, 1999

_______________, )

Appellant, )

) Appeal No. 01975611

v. ) Agency No. 931127

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency, )

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from the final decision of the agency concerning

her allegation that the agency violated Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted

by the Commission in accordance with the provisions of EEOC Order

No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

appellant based on race (White) when she was non-selected for the position

of Supervisory Forester, GS-460-11/12, in 1993.

BACKGROUND

Appellant filed a formal complaint in December 1993 in which she raised

the issue identified above. Following an investigation, appellant did

not request an administrative hearing and the agency thereafter issued a

final decision in June 1997 finding no discrimination. It is from this

decision that appellant now appeals.

During the period in question, appellant was employed as a District

Fire Management Officer in the Cleveland National Forest. In June 1993,

appellant, along with eleven other individuals, applied for the position

of Supervisory Forester, GS-460-11/12 (the Position), which was located at

Shasta Trinity National Forest. The applications of those applicants who

were determined to be qualified for the Position were initially reviewed

by an evaluation panel which assessed the applicants' strengths and/or

weaknesses in a number of areas.

The officials who thereafter reviewed the applications and assessments

explained that they were looking for a candidate who possessed both fire

management experience and experience in fire budgeting. Because none

of the applicants were deemed strong in both areas, a decision was

made to hire two individuals. Officials explained that the first of

the two individuals selected (Selectee 1 - Native American/ Hispanic)

had strong credentials in the areas of fuel and budgeting and that the

second (Selectee 2 - Native American) was strong in the areas of fire

suppression and running a large district fire organization. One of the

recommending officials explained that appellant was not as well-qualified

in these areas, stating, "I was aware of some of [appellant's] problems

in the budgetary area from firsthand knowledge while she served on a

detail in the [P]osition. She also did not have the years of experience

that the recommended candidates had."

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. Appellant has the initial burden

of establishing a prima facie case of discrimi-nation. If appellant

meets this burden, then the burden shifts to the agency to articulate

some legitimate, nondiscriminatory reason for its challenged action.

Appellant must then prove, by a prepon-derance of the evidence, that

the legitimate reason articulated by the agency was not its true reason,

but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

Initially, we find appellant has established a prima facie case of

race discrimination. In so finding, we note that appellant was not

selected for the Position in favor of Selectees 1 and 2, both of whom

are non-members of appellant's racial group. See Bundy v. Jackson,

641 F.2d 934, 951 (D.C. Cir. 1981).

Because appellant has established a prima facie case, the agency has

the burden of articulating a legitimate, nondiscriminatory reason for

the challenged action. Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 254 (1981). We find that the agency has met this burden.

Specifically, officials explained that Selectees 1 and 2 were selected

because they were superior to the other applicants in the areas of

budgeting and fire suppression.

At this point, appellant bears the burden of establishing that the

agency's articulated reason is a mere pretext for discrimination.

Appellant can do this either directly, by showing that a discrimi-natory

reason more likely motivated the agency, or indirectly, by showing that

the agency's proffered explanation is unworthy of credence. Id. at 256.

In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme

Court held that a fact finder is not required, as a matter of law, to

find discrimination whenever it finds that the employer's explanation is

not credible. The Court further made clear that a fact finder may find

discrimination in such circumstances. The critical factor is that a fact

finder must be persuaded by the complainant that it was discrimination

that motivated the employer to act as it did. According to the Court,

it is not sufficient "to disbelieve the employer; the fact finder must

believe the plaintiff's explanation of intentional discrimination."

Id. at 519 (emphasis in original).

In a non-selection case, pretext may be demonstrated where appellant's

qualifications are shown to be plainly superior to those of the

selectee(s). Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

An employer, however, has the discretion to choose among equally

qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061

(6th Cir. 1981). Additionally, an employer has greater discretion when

choosing management level employees. Wrenn v. Gould, 808 F.2d 493, 502

(6th Cir. 1987).

In the present case, the Commission has considered appellant's various

contentions and finds them insufficient to establish pretext. With regard

to those contentions pertaining to appellant's qualifications, we

initially note that appellant was clearly qualified for the Position.

At the same time, however, Selectees 1 and 2 were also qualified.

Moreover, both of these individuals appear to have been stronger than

appellant in the areas identified by agency officials. Therefore,

we find appellant has not demonstrated that her qualifications were

plainly superior to those of either Selectee 1 or Selectee 2.

Appellant also cites a statement made by a Personnel Management

Specialist who was involved at the early stages of the selection process.

Specifically, this individual made a statement indicating that she

believed it would be difficult for management to achieve the goal of

a multicultural workforce without being cognizant of a person's sex

or minority status when making selection decisions. Not only is this

statement somewhat ambiguous, but, more importantly, this individual

was not responsible for the selections at issue. In this regard, the

individuals who were responsible explained that it was the selectee's

qualifications, not their sex and/or minority status, that was the basis

for their selections. Accordingly, the Commission finds appellant has

not established that she was discriminated against based on race when

she was not selected for the Position.

CONCLUSION

Based on a review of the record and for the reasons cited above, it is

the decision of the Commission to AFFIRM the FAD and find appellant has

not established that the agency discriminated against her as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

September 10, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations