Allen R. Atkins, Complainant,v.Michael Leavitt, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionMar 23, 2000
01A33118 (E.E.O.C. Mar. 23, 2000)

01A33118

03-23-2000

Allen R. Atkins, Complainant, v. Michael Leavitt, Administrator, Environmental Protection Agency, Agency.


Allen R. Atkins v. Environmental Protection Agency

01A33118

March 23, 20004

.

Allen R. Atkins,

Complainant,

v.

Michael Leavitt,

Administrator,

Environmental Protection Agency,

Agency.

Appeal No. 01A33118

Agency No. 2002-0026-NC

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful 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 accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission affirms the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as a Civil Engineer, GS-13, at the agency's Research Triangle Park,

located in Raleigh, North Carolina. Complainant sought EEO counseling

and subsequently filed a formal complaint on November 21, 2001, alleging

that he was discriminated against on the bases of race (Caucasian) and age

(D.O.B. 2/21/39), when he was not selected for the position of General

Engineer (Team Leader), GS-14, advertised under Vacancy Announcement

No. EPA-RTP-MP-2001-106.

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision.

In its decision, the agency stated that complainant established a

prima facie case of race and age discrimination. However, the agency

concluded that management provided a legitimate, nondiscriminatory

reason for its non-selection of complainant. Specifically, the agency

stated that the selectee's responses to the panel's questions were

superior to complainant's responses. Finally, the agency concluded that

complainant failed to establish that the agency's reason was a pretext

for discrimination.

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green. 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that

a prohibited consideration was a factor in the adverse employment

action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to

the agency to articulate a legitimate, nondiscriminatory reason for

its action. See Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). Once the agency has met its burden, the

complainant bears the ultimate responsibility to persuade the fact finder

by a preponderance of the evidence that the agency acted on the basis of

a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993).

The record contains the affidavit of the selecting official (SO) who

was also complainant's supervisor since July 1990. In his affidavit,

the SO stated that the selectee's qualifications were superior to

complainant's qualifications. He stated that he based this conclusion

on the applications and the selective/ranking factors for the position.

The record reveals that the selectee had more formal education than

complainant. Complainant had an AA in Pre-Engineering and a BS in

Civil Engineering, while the selectee had a BA and MS in Engineering.

The record also reveals that the selectee had a more varied work

experience than complainant. Complainant had experience as a Sanitary

Engineer, Design Engineer, General Engineer and Civil Engineer between

1965 and 2001. By comparison, the selectee had experience including

engineering work from 1985 to 2001, some of his worked was as an

instructor at a U.S. Army Engineer School; as a Battalion Personnel

and Logistics Officer; as a U.S. Army Engineer Company Commander; as

an Assistant Professor at Military Science; as a Military Assistant

to the District Engineer-Construction, Corps of Engineers; and as an

Environmental Engineer for the agency.

The affidavits of the panel members reflect that they were uniform

in their assessment that the selectee gave better answers during the

interview than complainant gave. They concluded that the selectee showed

more passion, excitement and enthusiasm for the position. Specifically,

they testified that the selectee was very conversant on all aspects of

engineering and all aspects of the position. The panel members stated

that the selectee elaborated his responses and always gave examples from

his work in the agency as well as in the U.S. Army Corps of Engineers.

They stated that the selectee had great communication skills and described

past experiences that illustrated his ability to work with and lead teams

of engineers, as well as others. In comparison, they found complainant's

interview was substandard. The panel members testified that complainant

gave short answers and no examples so that they went through the questions

in about twenty minutes.

In his affidavit, complainant stated that after more than thirty

years in the engineering field with experience in laboratory design,

electrical engineering, he believed that he was the most qualified.

He stated that no one else had laboratory design experience. Complainant

alleged that the panel did not have a subject matter expert (SME) on it.

Complainant stated that no questions were asked about engineering.

The record reveals that the �laboratory design� was not one of the

selective/ranking factors. The record also reveals that at least three

of the panel members were as well qualified as SMEs based on prior work

experience. Specifically, one of the members served as a Project Manager

for the construction of the new EPA Research Laboratory; another one

worked in one of the scientific divisions that received services for the

Administrative Services Division; and another one was familiar with the

tasks of the Engineering Team in her previous service as Deputy Division

Director of the Facilities Division, at Headquarters in Washington D.C.

The agency attested that a SME is a person who knows a job with all its

duties and requirements, stating the SME need not be a person who is

specialized in the field. Finally, assuming that it is true that the

panel members did not ask questions about engineering, the record does

not establish that the questions asked were unrelated to the requirements

of the position at issue.

Upon review, the Commission finds that the agency articulated a

legitimate, nondiscriminatory reason for its action in making the

selection. The selectee's interview was superior to complainant's

interview. The selectee also had more varied experience and more formal

education than complainant. Where, as here, the agency has articulated a

legitimate, nondiscriminatory reason for the personnel action at issue,

the factual inquiry can proceed directly to the third step of the

McDonnell Douglas analysis to the ultimate issue of whether complainant

has shown by a preponderance of the evidence that the agency's actions

were motivated by discrimination. See United States Postal Board of

Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department

of Transportation, EEOC Request No. 5900159 (June 28, 1990).

In nonselection cases, pretext may be found where the complainant's

qualifications are plainly superior to the qualifications of the selectee.

See Wasser v. Department of Labor, EEOC Request No. 05940058 (November

2, 1995). The Commission also notes that an employer has the discretion

to choose among equally qualified candidates provided that the employment

decision is not based upon unlawful criteria. The Commission is not

persuaded that complainant's qualifications were so plainly superior to

the selectee's qualifications and experience so as to warrant a finding

of pretext. Complainant has not shown that his interview was superior

or that the interview process was designed to disadvantage him. We find

therefore that complainant has failed to rebut the agency's articulated

legitimate, nondiscriminatory reason. Moreover, complainant has failed

to show, by a preponderance of the evidence, that he was discriminated

against because of his race or age.

Accordingly, the agency's decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden

Director

Office of Federal Operations

March 23, 20004

__________________

Date