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