01A11311
10-03-2001
Armando Marquez, Complainant, v. John M. Bernal, U.S. Commissioner, International Boundary & Water Commission Agency.
Armando Marquez v. International Boundary & Water Commission
01A11311
October 3, 2001
.
Armando Marquez,
Complainant,
v.
John M. Bernal,
U.S. Commissioner,
International Boundary & Water Commission
Agency.
Appeal No. 01A11311
Agency No. 97-04
Hearing No. 360-98-8802X
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
discriminated against on the bases of national origin (Mexican American),
sex (male), age (42) and reprisal (prior EEO activity), when:
(1) on or around December 1994, he was not selected for the position
of General Supply Specialist, GG-2001-7, or 9 or 11, advertised under
vacancy announcement number 94-27;
on or around January 1996, he was not selected for the position of
Supervisory Accountant, GG-510-11, advertised under vacancy announcement
number 95-41;
on or around December 1996, he was not selected for the position
of Auditor, GG-511-12 or 13, advertised under vacancy announcement
number 96-15;
on or around April 1997, he was not selected for the position of Program
Analyst, GG-343-13, advertised under vacancy announcement number 967-14;
on or around June 1997, he was not selected for the position of Budget
Analyst, GG-560-7 or 9, advertised under vacancy announcement number
97-18;
on or around June 1997, he was not selected for the position of
Supervisory Accounting Technician, GG-525-8, advertised under vacancy
announcement number 97-20; and
on or around June 1997, he was not selected for the position of Auditor,
GG-511-13, advertised under vacancy announcement number 97-21.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as an Program Analyst GG-343-11, Operations Department, Field Offices,
El Paso, Texas, facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal EEO
complaint with the agency on August 27, 1997, alleging that the agency
had discriminated against him as referenced above. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that there was insufficient evidence to establish that
complainant was discriminated against with regard to the proceeding issue.
Specifically, the AJ found that regarding the General Supply Specialist
position, complainant established a prima facie case of discrimination,
because the selectee was of a different national origin, sex and age.
Therefore the AJ found that all individuals on the GS-7 list were
interviewed, and because a GS-7 was chosen, there was no need for the
selecting official to interview those on either the GS-9 or GS-11 (the
list on which complainant was referred) referral list.
Regarding the Supervisory Accountant position, the AJ found that in
addition to seven others, the position was canceled. The AJ concluded
that the agency canceled the position for budgetary reasons, the AJ
concluded that the evidence was not persuasive that any of the eight
positions, and particularly this position, was canceled for a prohibited
reason.
The AJ also found that regarding the Auditor position, complainant
established a prima facie case of sex discrimination since the selectee
was a female. The AJ found that since only noncompetitive eligibles for
the position were interviewed, complainant, as a competitive eligible,
was not interviewed. Also the AJ found that the selectee declined the
offer and the position was readvertised as auditor, GS-511-13, under
vacancy announcement 97-21, which is listed as a claim (7).
The AJ concluded that regarding the positions of Program Analyst and
Supervisory Accounting Technician, complainant did not apply for any of
those positions.
The AJ also found that regarding the Budget Analyst position, complainant
established a prima facie case of sex and age discrimination, because
the selectee was female and younger than complainant. Further, the
AJ concluded that complainant failed to establish a prima facie case
of national origin discrimination because the selectee was Hispanic.
The AJ found that complainant applied for this position as GS-11, even
though the job was advertised at the 7/9 grade level. The AJ concluded
that complainant applied as a GS-11 and was a noncompetitive eligible.
The AJ further concluded that regarding the Auditor position (claim 7),
complainant failed to established a prima facie case, because the selectee
was of the same national origin and sex, and was older than complainant.
The AJ found that complainant was rated qualified, but not best qualified,
for this position. As a result, complainant's name was not referred to
the selecting official.
CONTENTION ON APPEAL
On appeal, complainant contends that the investigator hired by the
agency was biased. Complainant contends that the investigator is a close
friend of the person who caused most of the alleged disparate treatment.
Complainant asserts that the agency had several other investigators
that could have done the investigation, instead they chose a biased
investigator. Complainant further contends that the investigator never
gave him the opportunity to interrogate the agency's witnesses nor did
he interview his witnesses.
ANALYSIS AND FINDINGS
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgement a court does not sit as a
fact finder. Id. The evidence of the non-moving party must be believed
at the summary judgement stage and all justifiable inferences must be
drawn in the non-moving party's favor. Id. A disputed issue of fact is
"genuine" if the evidence is such that a reasonable fact finder could
find in favor of the non-moving party. Celtotex v. Carett, 477 U.S. 317,
322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st
Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case. If a case can only be resolved by weighing
conflicting evidence, summary judgement is not appropriate. In the
context of an administrative proceeding under Title VII, an AJ may
only properly consider summary judgement after there has been adequate
opportunity for development of the record.
In general, claims alleging disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979)(requiring a showing that age was a determinative
factor, in the sense that "but for" age, complainant would not have
been subject to the adverse action at issue). A complainant 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 reason was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
Complainant may establish a prima facie case of discrimination in the
nonselection context by showing that: (1) she is a member of a protected
class; (2) she was qualified for the position; (3) he was not selected
for the position; and (4) she was accorded treatment different from that
given to persons otherwise similarly situated who are not members of
her protected group or, in the case of age, who are considerably younger
than she. Williams v. Department of Education, EEOC Request No. 05970561
(August 6, 1998); Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996). Complainant
may also set forth evidence of acts from which, if otherwise unexplained,
an inference of discrimination can be drawn. Furnco, 438 U.S. at 576.
The AJ found that complainant established a prima facie case
of discrimination on the basis of national origin, sex and age,
regarding the General Supply Specialist position. The AJ also found
that complainant established a prima facie case of sex discrimination
regarding the Auditor position (claim 2). In the other five positions
the AJ found that complainant failed to establish a prima facie case.
For example, in Supervisory Accountant position the position was canceled
and for the Supervisory Accounting Technician, complainant did not apply.
Nevertheless, the established order of analysis in discrimination cases,
in which the first step normally consists of determining the existence
of a prima facie case, need not be followed in all cases. Where 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, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
The agency has articulated a legitimate, nondiscriminatory reason for not
selecting complainant in any of the seven positions. Specifically, the
agency did not select complainant in the position of: (a) General Supply
Specialist, because the selecting official choose the selectee from the
GS-7 referral list, while complainant was referred in the GS-9 or GS-11
referral list; (b) Auditor, the position was readvertised Auditor,
GG-511-13; (c) Supervisory Accountant, the position was canceled;
(d) Program Analyst, complainant did not apply; (e) Budget Analyst,
complainant was a noncompetitive eligible, while the job was advertised at
the 7/9 grade level; (f) Supervisory Accounting Technician, complainant
did not apply; and (g) Auditor, complainant's name was not referred to
the selecting official. We must therefore consider whether complainant
has proven pretext.
The Commission notes that in nonselection cases, pretext may be found
where the complainant's
qualifications are demonstrably superior to the selectee's. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, an employer
has the discretion to choose among equally qualified candidates.
Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981).
We find that substantial evidence supports the AJ's finding that the
agency did not discriminate against complainant on the bases of national
origin, sex, age or reprisal. Most importantly, complainant does not
argue, on appeal, that he was at least as well or better qualified than
the selectees. The agency gave a detailed justification why complainant
was not selected for any position. Complainant failed to rebut any
of the agency reason. Complainant failed to prove that the agency's
reasons were pretexts. Complainant also failed to present sufficient
evidence to prove his allegation that his investigation was biased.
CONCLUSION
After careful review of the record, the Commission finds that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies and laws. We note that complainant
failed to present sufficient evidence that the agency's action was
motivated by discriminatory animus toward complainant's national origin,
sex, age or reprisal. We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the AJ's final decision.
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
October 3, 2001
_________________________
Date