0120112264
04-13-2012
Calvin Solomon, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Calvin Solomon,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112264
Hearing No. 450-2010-00247X
Agency No. ARRRAD09OCT04558
DECISION
On March 21, 2011, Complainant filed an appeal from the Agency’s
February 14, 2011, final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Temporary Sandblaster at the Agency’s South Wash Rack, Chemical
Plant and Electroplating Branch, Red River Army Depot in Texarkana,
Texas. Complainant applied for the position of a permanent Sandblaster,
GS-5423-07, under Vacancy Announcement SWDX090421818D. Complainant along
with 37 other applicants was considered for selection in July 14, 2009.
The Certificate listed the candidates in ranking order as generated by
Human Resources. The Selecting Official reviewed the resumes in order
as listed on the Certificate. Complainant’s name appeared towards the
bottom of the registrar and was not selected for the position in question.
On December 28, 2009, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of age (55) when, on
September 3, 2009, Complainant was not selected for a permanent position
as a Sandblaster, GS-5423-07, under Vacancy Announcement SWDX090421818D.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right
to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing but the AJ denied the hearing request on
the grounds that Complainant failed to comply with the AJ’s orders.
The AJ indicated that Complainant was served with a discovery request
on August 24, 2010. Complainant failed to respond to the request.
The Agency filed a motion to compel which the AJ granted on October
6, 2010. Complainant was directed to respond to the discovery request
within 15 days. Complainant failed to do so. Complainant’s attorney
withdrew from representation on October 21, 2010. On October 22, 2010,
Complainant requested that the hearing proceed. The Agency filed for
sanctions on October 25, 2010, noting that Complainant failed to provide
any information as requested. The AJ found that Complainant failed to
comply with the AJ’s orders. As such, the AJ found that cancellation of
the hearing was an appropriate sanction. The AJ remanded the complaint
to the Agency, and the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b).
The Agency issued its final decision on February 14, 2011. The decision
concluded that Complainant failed to prove that the Agency subjected
him to discrimination as alleged. Specifically, the Agency held that
it provided legitimate, nondiscriminatory reasons for not selecting
Complainant and that Complainant failed to show that the reasons were
pretext for discrimination.
This appeal followed without specific comment by Complainant.
The Agency requested that the Commission affirm its decision finding
no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail,
he or she 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. 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 actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This 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 Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate,
nondiscriminatory reasons for not selecting Complainant. The Selecting
Official averred that he was given Certificate in ranking order based on
scores and within each group of scores, the individuals were placed in
an order based on social security numbers. The Selecting Official was to
adhere to the Rule of three to make his selections for the six vacancies.
Based on his review of the candidates in the order presented to him, he
offered the position to six individuals who were listed above Complainant
on the Certificate. The Selecting Official did not even get a chance
to get to Complainant’s name on the Certificate. He also averred
that there were other employees he could not pull for the position
because they, like Complainant, were listed too low on the Certificate.
We find that the Agency has articulated a legitimate, nondiscriminatory
reason for not selecting Complainant.
We turn to Complainant to establish that the Agency’s reasons are
pretext for age-based discrimination. Complainant argues that the Agency
pre-selected the Selectees and that the Selecting Official chose his
close friends for the position. Upon review of the record, we find that
Complainant fails to provide any evidence that the Agency pre-selected
the Selectees in a discriminatory manner.1 Further, Complainant failed
to demonstrate that the Selecting Official made his selections based
on age. Accordingly, the Commission finds that Complainant has failed
to show that the Agency’s action was motivated by a discriminatory
animus based on his age.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
April 13, 2012
__________________
Date
1We note that while evidence of pre-selection or favoritism may
act to discredit an agency’s explanation for its selection,
pre-selection does not violate Title VII when it is based on the
qualifications of the selectee and not some basis prohibited
by Title VII. Goostree v. State of Tenn., 796 F.2d 854, 861
(6th Cir. 1986). In the instant matter, Complainant offered
no persuasive evidence that pre-selection, if it occurred,
was based on discriminatory animus.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120112264
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112264