01982344
04-14-2000
Avel L. Ladner, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Avel L. Ladner v. Department of Agriculture
01982344
April 14, 2000
Avel L. Ladner, )
Complainant, )
)
v. ) Appeal No. 01982344
) Agency No. 960228
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission 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,
as amended, 42 U.S.C. � 2000e et seq.<1> The final agency decision
was dated December 12, 1997, and received by Complainant on December
26, 1997. The appeal was postmarked January 23, 1998. Accordingly,
the appeal is timely (see, 64 Fed. Reg. 37,644, 37,659 (1999)(to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.402(a)), and is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency's final decision correctly
found that complainant failed to prove the agency discriminated against
him based on his race (Caucasian), color (white), and sex (male) when
it did not select him for a vacant Equal Employment Specialist position,
GS-0260-7/9/11, on November 2, 1995.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Biological Science Technician, GS-404-7, at the agency's Gulfport
Imported Fire Ant Station in Gulfport, Mississippi. On October 6, 1995,
complainant applied for the position of Equal Employment Specialist,
GS-0260-7/9/11, but the agency notified him on November 14, 1995,
that it did not select him for the position. Believing he was a
victim of discrimination, complainant sought EEO counseling; however,
informal efforts to resolve his concerns were unsuccessful. Complainant
subsequently filed a complaint on February 28, 1996. At the conclusion of
the investigation, complainant requested that the agency issue a final
agency decision. The agency issued a final decision wherein it found
that complainant failed to prove the agency discriminated against him
based on his race, color, and sex. Thereafter, complainant filed the
instant appeal.
The record indicates that the purpose of the Equal Employment Specialist
position is to direct and support the Southeastern Region's (SER) efforts
in achieving workforce diversity goals for a multi cultural organization.
The vacancy announcement contains five evaluation criteria: (1) knowledge
of EEO laws, rules, regulations, and procedures governing EEO complaints
in the Federal sector; (2) skill in analyzing organizational policies,
issues, and practices in order to identify barriers in EEO and propose
solutions; (3) ability to communicate orally and in writing; (4) ability
to counsel employees on complex EEO discrimination issues; and (5)
skill in working and meeting with persons regardless of socioeconomic
and ethnic backgrounds.
Without conducting interviews, the Selecting Official (white male)
considered six people from the Selection Certificate, including
complainant and five other candidates (three black females and two
white females). The Selecting Official initially selected a GS-11
Staffing Assistant (white female) because of the importance of the
position and to avoid losing the GS-11 position. After consulting with
the Approving Official (black male), the Selecting Official reassigned
the GS-11 Staffing Assistant to a GS-11 Budget Analyst position, and he
filled the vacancy with a GS-7 candidate. Of the remaining candidates,
the Selecting Official determined that the selectee (black female) was
best qualified person for the position. In comparison to complainant, the
Selecting Official found that the selectee "had far greater experience in
dealing with a greater variety of socioeconomic employees." In addition,
he concluded that "the selectee had better oral and written communication
abilities than complainant," and "the selectee simply presented a much
better prepared application."
During the investigation, Complainant alleged that the agency preselected
the selectee for the Equal Employment Specialist position and changed
its candidate selection process in order to qualify the selectee for the
position. Two Personnel Clerks stated that during a personnel meeting
held before the vacancy announcement was issue, the Approving Official
informed them that he wanted to see the selectee in the position.
One Personnel Clerk stated that the Approving Official instructed
her to qualify the candidates as they normally did; however, shortly
after she determined that the selectee did not qualify, the Approving
Official ordered her to send the applications to the Minneapolis Office
for qualifying. As stated above, the selectee was included on the
Selection Certificate when the Selecting Official considered the six
candidates. Finally, from February 2, 1994 to February 2, 1996, the
Selecting Official has made twelve selections for positions. Of those
twelve employees, he selected seven white females, five black females,
and 1 white male who was appointed under the "Handicapped Program."
Moreover, Complainant asserted that he was more qualified for the position
than the selectee due to his extensive background in EEO activities
and related training. At the time of the selection, complainant had
been employed as a GS-7 Biological Science Technician for 28 years.
The duties of this position required complainant to conduct various
testing programs and bioassays for the Imported Fire Ant program.
During his years of government service, complainant was a member of
the EEO Plant Protection and Quarantine (PPQ) Advisory Committee and
served as the Chair of the Disabilities Subcommittee from 1983 to 1989.
Complainant also worked as a captain in the reserves from 1970 to 1980, in
which he performed the duties of a deputy in the Harrison County Sheriff's
Department. Complainant obtained a Bachelor's degree in political science
and history in 1977, and completed four courses related to EEO law: (1)
EEO-Its place in the Federal government (1983); (2) Affirmative Action
Planning Workshop (1985); (3) Disabilities in the Workplace (1987); and
(4) Affirmative Action Organizational Development Systems Training (1989).
The record indicates that at the time of the selection, the selectee had
15 years of experience in financial and budget positions. Since 1993,
the selectee has been employed as a GS-561-6/10 Budget Assistant, and her
primary duty consisted of maintaining the general ledger for appropriation
integrity and financial control. As of April, 1995, the selectee was
temporarily designated as the Acting EEO Officer/Workforce Diversity
Coordinator, which required her to perform many of the duties of the
position at issue in this appeal. The selectee obtained a Bachelor's
degree in business administration in 1975, and completed numerous EEO
courses, including: (1) EEO lecture training; (2) various EEO workshops
during the Blacks in Government (BIG) training; (3) HIV/AIDS in the
Federal Workplace (1994); (4) Workforce Diversity training (1994); and
(5) EEO correspondence, EEO-Its Place in the Federal Government (1995).
On appeal, complainant contends that the agency failed to consider
a number of his arguments. In particular, he alleges that (1) the
selectee was not qualified for the position; (2) the agency preselected
the selectee; (3) the agency altered its normal qualification process to
ensure that the selectee qualified for the position; and (4) the agency
reassigned the GS-11 Staffing Assistant to another position to fill the
vacancy with a black female. The agency requests that we affirm its
final decision.
ANALYSIS AND FINDINGS
This case involves a complaint alleging employment discrimination based on
race, color, and sex, when complainant was not selected for the position
of Equal Employment Specialist. The allocation of burdens and order
of presentation of proof in this case involves a three-step procedure.
Complainant has the initial burden of establishing, by a preponderance
of the evidence, a prima facie case of discrimination; the burden
shifts to the agency to articulate some legitimate, nondiscriminatory
reason for its challenged action; and complainant must then prove, by a
preponderance of the evidence, that the legitimate reasons offered by the
agency were not its true reasons, but were a pretext for discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). It is undisputed
that complainant established a prima facie case of discrimination when
he demonstrated that similarly situated employees not in his protected
classes were treated differently than him under similar circumstances.
This case turns on whether complainant proved by a preponderance of the
evidence that the agency's articulated reasons for his nonselection
were a pretext for discrimination based on his race, color, and sex.
See St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 2749 (1993).
For the reasons discussed below, we find that complainant failed to
satisfy this burden.
Pretext may be demonstrated by showing that complainant's qualifications
are observably superior to those of the selectee's. Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). Complainant states that he was
better qualified than the selectee due to his extensive background
in EEO activities and related training. The record indicates that
complainant and the selectee were well qualified for the vacancy.
While complainant may have more overall job experience than the selectee,
complainant did not prove that his job experience resulted in being more
proficient in the knowledge and abilities required by the position at
issue than the selectee. To the contrary, the selectee's EEO background
was more applicable and recent than complainant's. In particular, the
selectee had been performing the duties of the EEO Officer/Workforce
Diversity Coordinator for seven months, yet complainant's most recent
EEO duties ended in 1989 when he left the EEO PPQ Advisory Committee.
Moreover, the selectee completed numerous EEO courses in 1994 and 1995,
but complainant's most recent EEO course was in 1989. As such, we find
that complainant has not demonstrated that his qualifications for the
position were "observably superior" to those of the selectee's.
Complainant also asserts that before the vacancy announcement was issued,
the agency had preselected the selectee for the position because she is a
black female. The Supreme Court has indicated that an employer may choose
between equally qualified applicants as long as the choice is not based
on an illegal reason. Texas Department Community Affairs v. Burdine, 450
U.S. 248, 259 (1981). Although the Selecting Official has a history of
selecting females for positions, Complainant has presented no evidence
from which we can infer that the selectee was chosen based on race,
color, and/or sex. While some of the evidence indicated the possibility
of preselection, we have previously held that preselection does not
violate Title VII when it is based on the qualifications of the selected
individual and not on some prohibited basis. Riddle v. Department of the
Air Force, EEOC Request No. 05931012 (July 7, 1994). Assuming arguendo,
that the selectee was preselected by the agency, complainant has presented
no persuasive evidence that it was based on any impermissible reason.
Complainant alleges that the agency modified its candidate qualification
process in order to qualify the selectee for the vacancy. However,
Complainant has not shown any persuasive evidence that the agency violated
its policy in placing the selectee on the certificate. The agency
stated that it felt the personnel office in Minneapolis, Minnesota,
should qualify the applicants because several employees applied for the
position and there were rumors of preselection. Moreover, the Personnel
Clerk stated that she did not advise the Approving Official that the
selectee was not qualified for the vacancy, and there is no evidence
that he was aware of that fact when he asked the Minneapolis office to
qualify the candidates. Complainant has not shown that the agency was
motivated by prohibited considerations when the selectee was included
on the Selection Certificate or that its reasons for deviating from the
internal certification process were pretextual.
Finally, complainant contends that the agency reassigned the GS-11
Staffing Assistant to the Budget Analyst position so that it could select
a black female for the vacancy. The Approving Official stated that the
agency reassigned the Staffing Assistant to the Budget Analyst position
because of budget priorities and her prior experience in that position.
The Selecting Official confirmed that the Budget Analyst position needed
to be filled by a GS-11 employee and the Staffing Assistant had a lot
of experience in that area. Complainant has not provided any persuasive
evidence to show that the agency's reasons for reassigning the Staffing
Assistant constituted a pretext for hiring the selectee for the vacancy
based on her race, color, or sex.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the final agency
decision.
CONCLUSION
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 14, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
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.