0120080660
09-28-2009
Alfonso Zamarripa, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Alfonso Zamarripa,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080660
Hearing No. 540-2006-00088X
Agency No. ARWSMR05AUG10600
DECISION
On November 20, 2007, complainant filed an appeal from the agency's
October 17, 2007 final order concerning his equal employment opportunity
(EEO) complaint alleging 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether substantial evidence supports the Administrative Judge's (AJ)
finding that complainant was not subjected to discrimination on the bases
of race, national origin, age, and in reprisal for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Operations Research Analyst, GS-1515-13, at the agency's Training
and Doctrine Command Analysis Center (TRAC) facility in White Sands, New
Mexico Missile Range (WSMR). The record reveals that on May 26, 2005,
the agency issued a vacancy announcement for the position of Chief of
Exercises Division, GS-14. Complainant applied for the position and was
amongst 14 applicants deemed qualified by the agency. The applicants'
resumes were initially reviewed by the Operations Research Analyst, who
prepared a matrix assessing the strengths of weaknesses of each applicant
relative to the position requirements.1 The Operation Research Analyst's
matrix indicated that complainant had experience in war gaming; had
weak combat simulation experience; had strong planning and coordination
experience; had experience with the JANUS combat simulation program;
had no leadership or management experience; and, had no Homeland Security
experience.
The selecting official (Colonel) was the Interim Director of the Exercises
and War Games Director. After independently ranking the applicants'
resumes and reviewing the applicant matrix, the Colonel selected the
Acting Chief of Exercises Division (Caucasian born in 1958) for the
position.
On October 3, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race/national origin (Hispanic),
age (born in 1939), and in reprisal for prior EEO activity when on August
8, 2005, the agency failed to select him for the position of Supervisory
Operations Research Analyst, GS-1515-14, or Chief of the Exercises Branch
and the War Games Division.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC AJ. Complainant timely requested a hearing,
and the AJ held a hearing on April 26, 2007.
At the hearing, complainant testified that he was qualified for the
position because he has done reports, studies, and trained employees.
Complainant further testified that he has been a manager and briefed
generals in Europe, Hawaii, and Korea. Additionally, complainant further
stated that he has received many awards for his work on the JANUS combat
simulation computer system.
The Colonel testified that he reviewed the applicants' resumes and the
Operation Research Analyst's applicant matrix as the "starting point"
in the selection process. Hearing Transcript, p. 192. He further
testified that he independently ranked the resumes using the matrix
and position description. The Colonel stated that he thought that
complainant's resume was very vague, had a five year "gap," and lacked
specifics. He also stated that the selectee's resume indicated that
he did more synthesizing and working with customers than complainant's
resume indicated.2 The Colonel further stated that the selectee worked
with external entities and made changes to the combat simulation models.
Additionally, the Colonel stated that he was not aware of complainant's
age, national origin, race, or previous EEO activity.3
The AJ issued a decision on October 17, 2007 in which she found that
complainant failed to prove that he was subjected to discrimination or
reprisal because he did not prove that the agency's non-discriminatory
reasons for its actions were pretext for unlawful discrimination.
The agency subsequently issued a final order adopting the AJ's findings.
CONTENTIONS ON APPEAL
In a brief statement on appeal, complainant generally reiterates his claim
that he was subjected to unlawful discrimination when the agency failed
to promote him. The agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we assume arguendo that complainant established a prima
facie case of discrimination and reprisal. We find that there is
substantial evidence in the record to support the AJ's conclusion that
complainant failed to prove that the agency's explanations are pretext for
unlawful discrimination. Therefore, we find that the AJ properly found
no discrimination. The agency provided legitimate, non-discriminatory
reasons for its actions, i.e., the selecting official stated that he
chose the selectee because the selectee's resume indicated that he did
more synthesizing and working with customers than complainant's resume
indicated. The selecting official also testified that complainant was
not selected because his resume was very vague, had a five year "gap,"
and lacked specifics. Complainant failed to prove that his qualifications
are observably superior to those of the selectee or otherwise show that
the agency's explanations are unworthy of belief. Bauer v. Bailor, 647
F.2d 1037. 1048 (10th Cir. 1981); Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998).
CONCLUSION
Accordingly, based on a thorough review of the record, the Commission
affirms the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
____09/28/09______________
Date
1 We note that the matrix did not rank the candidates.
2 When asked to contrast the complainant with the selectee, the Colonel
testified that he saw complainant as being more of an interactor,
"he worked on JANUS training people." Hearing Transcript, p. 196.
He noted that the selectee, on the other hand, indicated that "he had
worked with contractors and people external to the organization." Id.
The Colonel felt that the selectee was more than just an analyst, but
was operating at a higher level and was "[d]oing more of the synthesizing
and working with customers." Id.
3 The Colonel further stated that he did not arrive at TRAC until July
2004, well after complainant's previous EEO activity in 1995 and 1999.
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0120080660
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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