01990450
07-06-2000
Albert L. Baskin, Complainant, George C. Tenent, Director, Central Intelligence Agency, Agency.
Albert L. Baskin v. Central Intelligence Agency
01990450
July 6, 2000
Albert L. Baskin, )
Complainant, )
) Appeal No. 01990450
) Agency No. 98-14
)
George C. Tenent, )
Director, )
Central Intelligence Agency, )
Agency. )
____________________________________)
DECISION
On Monday, October 26, 1998, the Equal Employment Opportunity Commission
(Commission) received an appeal by the complainant from the final agency
decision (FAD) dated September 24, 1998 concerning his complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. (see
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.402(a)), and it is accepted under 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).<1>
ISSUE PRESENTED
Whether the complainant was discriminated against on the bases of his
race and sex (African American male) when he learned in February 1998
that he did not receive a promotion to GS-11.
BACKGROUND
The complainant filed an EEO complaint alleging the above issue.
The FAD indicates that after he received the report of investigation, he
requested a FAD. This suggests that the agency provided the complainant
the option of requesting a hearing before an EEOC Administrative Judge
(AJ) or a FAD without a hearing. The complainant does not contend that
he wanted a hearing.
The complainant was a GS-10. Agency regulations indicate that promotions
for employees in his grade range are based on merit and qualifications
to perform higher-level responsibilities. They indicate that heads of
career services are responsible for ensuring that such employees are
comparatively evaluated for promotion at least annually, that comparative
evaluation is the primary mechanism for determining promotion eligibility,
and this is done by boards and panels.
In December 1997 and January 1998 a GS-10 Annual Career Service Panel
met to evaluate 12 GS-10 employees for promotion. Two of the candidates
were African American males. The panel recommended two white females
for promotion, and they were promoted to GS-12.
ANALYSIS AND FINDINGS
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides
the analytical framework for proving employment discrimination in
cases in which disparate treatment is alleged and no direct evidence
of discrimination has been presented. McDonnell Douglas requires the
complainant to first establish a prima facie case of discrimination.
Specifically, the complainant must establish that there is some substance
to the allegation of discrimination. This means he must present a body
of evidence such that, were it not rebutted, the finder of fact could
conclude that unlawful discrimination did occur. The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for
its action. Finally, the complainant has the opportunity to show,
by a preponderance of the evidence, that the agency's stated reason
is a pretext for discrimination. The ultimate burden of proof that
discrimination took place is the complainant's. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Since the agency articulated legitimate, nondiscriminatory reasons
for not promoting the complainant, as set forth below, we may proceed
directly to whether the complainant demonstrated by a preponderance of
the evidence that the agency's reason for its action was merely a pretext
for discrimination. United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983).
The complainant's job category is responsible for the promotion
of effective and efficient management of agency information and
records, regardless of the media. Panel members explained that the
complainant was not recommended for promotion because he demonstrated
weak analytical skills in a written project at the conclusion of a
developmental rotational assignment, his communication, expertise and
leadership skills were below average, he needed too much feedback, he
was not as competitive as his peers in his job category, and he recently
accepted a rotational position outside his field, which also made him
less competitive than his peers.
The complainant avers that these explanations are pretext to mask race
and sex discrimination. As an initial matter, he contends that before
serving on the panel, Panel Members 1 and 2 (white females) demonstrated
bias against him. This contention is unpersuasive. For example,
with regard to Panel Member 1, the complainant contended she previously
conducted an unobjective investigation of an alleged racial incident the
complainant raised. The record contains a draft copy of a memo Panel
Member 1 wrote detailing her investigation, and there is no evidence of
bias therein or elsewhere in the record.
Panel Member 3 (black female) served as a minority representative,
and believed the complainant was discriminatorily not promoted.
The complainant raises points Panel Member 3 made in her affidavit.
Panel Member 3 stated the complainant was not promoted even though he
completed developmental training. Panel Members 2 and 4 (white/Native
American male) persuasively affirmed, however, that there is no commitment
to promote employees who complete this training.
Panel Member 3 affirmed that the complainant's writing skills and
initiative were no different than the other developmental employees in his
job category with whom he trained. The record does not show, however,
that the assessments by the other panel members of the complainant's
qualifications were discriminatory. Under Title VII, an employer has
discretion to choose among equally qualified candidates, so long as
the decision is not based on unlawful criteria. In the absence of such
evidence, the Commission will not second guess the agency's assessment
of the candidates' qualifications. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 259 (1981).
Here, Panel Members 1 and 2 made somewhat unfavorable assessments of
the complainant's qualifications, and they had direct knowledge of his
performance. Panel Member 1 had specific concerns with the complainant's
performance during his rotational stint under her regarding a written
memo that demonstrated weak analytical skills. The record did not
indicate that Panel Member 3 had any direct knowledge.
The complainant also argues that the panel spent little attention
evaluating the initiative and written skills of white candidates. This is
not supported by the record. The record contains a panel evaluation
and feedback worksheet assessing various skills of the complainant,
including communication, initiative, and leadership. His communication
and leadership skills were rated as below average, and his initiative was
rated as average. It also contains a worksheet for Selectee 1, which
shows the panel rated her as above average by the panel in these areas.
While the record does not contain a panel rating worksheet for Selectee 2,
this does not mean her written skills and initiative were not considered.
Selectee 2's performance appraisals were positive in elements that
would suggest good written skills and initiative. The panel received
the candidates' performance appraisals.
The complainant raised a number of other arguments regarding
pretext. Generally, these went to the panel allegedly having inadequate
information and not considering aspects of his work background, two
white males in a prior class in his job category being promoted, and
prior alleged discrimination. None of these arguments were persuasive.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the final decision of the
agency which found that the complainant was not discriminated against
when he learned in February 1998 that he was not promoted to GS-11.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.