0120120634
07-31-2014
Complainant v. Chuck Hagel, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Complainant
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120120634
Hearing No. 540-2010-00029X
Agency No. YT-07-0059
DECISION
Complainant timely filed an appeal from the Agency's 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented on appeal is whether substantial evidence in the record supports the AJ's finding that Complainant failed to establish that he was subjected to discrimination based on his race, color, and as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Specialist (QAR), GS-11, at the Agency's facility in Tucson, Arizona. Report of Investigation (ROI), at 13. On February 28, 2007, the Technical Team Lead, made an announcement via e-mail that two employees were asked by management to serve in 45-day temporary promotions for Technical Team Lead positions. Id. at 64. Thereafter, on May 16, 2007, a third employee was asked to serve a 60-day period as a temporary Technical Team Lead. Id. at 147. Complainant felt that he deserved a temporary promotion as a Technical Team Lead.
On March 30, 2007, the Agency advertised Vacancy Announcement No. WTH307925148 for a position as a Lead Contract Operations Specialist, GS-12, with a closing date of April 9, 2007. Id. at 77-78.1 Complainant submitted his resume for the position and was placed on a web-based referral list, which included him and 13 other candidates for consideration. Id. at 80-83. The Agency subsequently established an interview panel, consisting of the Deputy Commander/Team Chief and the Program Integrator, both from the DCMA Albuquerque. Id. at 85. The Major of the DCMA Albuquerque served as the selecting official. Id.
On April 12, 2007, the Agency's Phoenix Technical Team Chief e-mailed the Major, the Deputy Commander/Team Chief, the Technical Team Lead, and copied the Agency's Special Operations Technical Lead (female, Caucasian). Hr'g, Ex. AJ-38. Therein, the Phoenix Team Chief invited the Special Operations Technical Lead to apply for the Contract Operations Specialist position, and noted that he worked with the Special Operations Technical Lead from April 2004 to July 2006. Id. The Phoenix Team Chief also noted that the Special Operations Technical Lead had demonstrated strong technical and leadership qualities. Id. As a result, on April 16, 2007, the Special Operations Technical Lead forwarded her resume to the individuals involved in the selection process listed above.
On April 23, and 25, 2007, the panel interviewed Complainant and the other candidates by telephone for the position. A score sheet for the interview was completed for each candidate, entitled "Resume Evaluation Criteria Template." Hr'g, Ex. AG-12. After the Agency's top candidate declined to interview for the position, the Agency decided not to select Complainant or anyone else on the web-based referral list. Hr'g Tr., 160-161. The Agency was aware that a number of employees within Special Operations were going to become available due to a reduction-in-force. ROI, at 181. As a result, the referral list was returned and Complainant and the other 13 candidates on the list were not selected.
On April 26, 2007, the Deputy Commander/Team Chief e-mailed the Special Operations Technical Lead, Major, and the Technical Team Lead. Hr'g, Ex. AJ-3. Therein, the Deputy Commander/Team Chief noted that the selection panel had returned the referral list because there were no qualified candidates. Id. The Deputy Commander/Team Chief further noted to the Special Operations Technical Lead that she could be brought-in at the GS-12, step 10, grade-level. Id. Thereafter, on May 7 and 8, 2007, the Major and the Technical Team Lead met with the Special Operations Technical Lead to further discuss the requirements of the position.
On May 11, 2007, the Deputy Commander/Team Chief submitted a "Referral List Candidate Selection" for the Contracts Operations Specialist position to Human Resources. ROI, at 92. Therein, the Deputy Commander/Team Chief noted, in pertinent part:
It was recently found out that the Tucson Special Operations Group (Black) has a number of very qualified candidates that will be [subjected to a Reduction-in-Force] if not placed. Given that situation, we contacted [the Special Operations Technical Lead] and have selected her . . . .
Id.
On May 29, 2007, the Special Operations Technical Lead accepted the position at the GS-12, step 10, grade-level. Afterward, on July 19, 2007, the Major informed the staff that the Special Operations Technical Lead had been officially selected to fill the Contract Technical Team Lead Position.
On September 12, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and age (57) when:
1. On June 19, 2007, he was made aware that he was not selected for the permanent position of Lead Contract Operations Specialist, GS-12, at the DCMA Phoenix, under Vacancy Announcement No. WTH307925148; and
2. On or around May 16, 2007, he was made aware that he was not appointed to act as a Temporary Technical Lead.
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 timely requested a hearing, which was held on December 21-22, 2010, and January 20, 2011. On September 22, 2011, the AJ issued a decision in favor of the Agency. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
With respect to claim 1, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for choosing the selectee, which Complainant failed to establish were pretext for discrimination. Specifically,
the AJ noted that the Agency chose the selectee based on her qualifications and the recommendations of a number of officials. The AJ also noted that, although the selection process may have violated Agency policy, there was no evidence that the Agency's reasons were pretext for discrimination. The AJ also found that Complainant failed to establish that his qualifications were plainly superior to those of the selectee. The AJ noted that the selectee was clearly the superior candidate in comparison to Complainant, noting that the selectee had been working as a GS-12 since 1989 and a GS-13 since 2004. The AJ also noted that the selectee already had experience working not only as a team lead, but also as a supervisor. The AJ additionally noted that the selectee received performance awards for five years in a row, from 2000 through 2004. The AJ indicated that the Major and Deputy Commander/Team Chief emphasized the selectee's experience as both a team lead and a supervisor, and her diversity of experience working in Quality Assurance. The AJ noted that management had obtained very strong recommendations for the selectee from multiple staff members where the selectee worked at the time. The AJ further pointed out that a member of the interview panel found Complainant's answers to be off-topic, focusing on the length of his tenure rather than on the impact and influence of his accomplishments. The AJ also noted that although Complainant believed he should have been selected because he had been in the office since 1992, he did not demonstrate that his qualifications were superior to those of the selectee.
With regard to claim 2, the AJ also found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish were pretext for discrimination. Specifically, the AJ noted that Complainant claimed that the Agency discriminated against him by selecting another employee for the third Temporary Technical Team Lead position. The AJ noted that the Major wanted this employee in the temporary position due to the employee's leadership experience in the military. The AJ further noted that management considered the fact that the employee received an award for developing a database for production surveillance, a system adopted for use by the entire Albuquerque command. The AJ pointed out that Complainant was made the fourth Temporary Technical Lead subsequent to the events at issue in his EEO complaint. The AJ additionally noted that Complainant had worked, on rotating basis, as a Temporary Technical Lead when the Permanent Technical Lead was out of the office. As such, the AJ found that Complainant failed to establish that he was subjected to discrimination when he was not chosen for the third detail to the Temporary Technical Team Lead position.2
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the AJ pointed out that the Deputy Commander/Team Chief made numerous inconsistent statements both before and during the hearing. Complainant asserts that Agency officials were untruthful during the initial investigation and during the hearing. Complainant states that the AJ remarked about the Deputy Commander/Team Chief's manipulation of the Resume Evaluation Criteria scoring. Complainant maintains that this is evidence that every effort was made to obscure and provide justification for the discriminatory nonselection.
Complainant also contends that the AJ omitted another main discrepancy involved in the production of evidence. Specifically, Complainant indicates that margin notes, to back up low scoring, were placed on his performance rating, but no one would admit to making the notes. Complainant states that the Deputy Commander/Team Chief and the Technical Team Lead low-rated his 2006 performance rating to exclude him from selection.
Complainant asserts that although the AJ found that Agency rules were likely violated during the selection process, the AJ only addressed whether or not the selectee was more qualified than him. Complainant maintains that the Agency's violation of its own selection policy is clear evidence of discrimination. Complainant further alleges that the AJ's Decision repeatedly accepts statements made by Agency officials who testified untruthfully.
The Agency reiterates its position below, and request that we affirm its final order.
STANDARD OF REVIEW
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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment
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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, color, and age, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, with regard to claim 1, the Program Integrator, a member of the panel, testified that Complainant gave rambling answers during the interview that were off-topic. Hr'g Tr., at 189. The Program Integrator testified that Complainant's answers focused on the length of his tenure rather than on the impact and influence of his accomplishments. Further, the Technical Team Lead testified that the Deputy Commander/Team Chief contacted him for a reference for Complainant. Id. According to the Technical Team Lead, he told the Deputy Commander/Team Chief that Complainant did not demonstrate the critical disciplines at the contract level and did not have the skill set necessary to be the team lead. Hr'g Tr. at 662-63. The Technical Team Lead testified that, based on his 11 years of observing Complainant, he felt that Complainant was not ready to work at the QAR level to manage personnel, suppliers, and the overall workload. Id. The Technical Team Lead believed that Complainant needed improvement in planning and organization skills. Id.
With respect to claim 2, the Technical Team Lead explained that he recommended the third employee for the temporary position before Complainant because this employee had stronger planning and organizational skills and had been given exceptional ratings. Id. at 656. The Technical Team Lead further testified that this employee received an award for developing a database for production surveillance, a system adopted for use by the entire Albuquerque command. Id. The Technical Team Lead testified that Complainant failed to complete a C21A surveillance plan, which showed a lack of planning on Complainant's part for the Technical Team Lead position. Id. at 657; Hr'g Ex. AG-8, at 2-3.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec'y Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish pretext is by showing that his qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
With regard to claim 1, we find there is substantial evidence in the record to support the AJ's finding that Complainant failed to establish that his qualifications were plainly superior to those of the selectee. The record reflects that the selectee had been working at the GS-13 grade-level since 2004, serving as a team lead supervising employees with the Agency's Special Programs in Tucson Arizona. ROI, at 107-113. The selectee also served as a Supervisory Quality Assurance Specialist at the GS-12 grade-level, supervising 15 employees, and had a Bachelor's degree. Id. In comparison, Complainant's resume lists no college degree, and there is no dispute that Complainant only had experience working at the GS-11 grade-level. ROI, at 99-102. The selectee clearly had substantially more supervisory experience than Complainant.
While Complainant claimed he had more years of experience than the selectee for promotion, Commission precedent has established that the number of years of experience does not necessarily establish the best qualified applicant. See, e.g., Buck v. Dep't of the Treasury, EEOC Appeal No. 01A54621 (Mar. 24, 2006). In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Upon review, we can find no evidence here that the Agency's nonselection of Complainant was based on his protected classes. The record reflects that the Agency chose the selectee believing that she was better qualified. Additionally, although the selectee may have been preselected, Complainant has not shown that any such preselection was motivated by discriminatory animus. Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).
Turning to claim 2, we also find that substantial evidence in the record supports the AJ's decision that Complainant failed to establish that the Agency's reasons were pretext for discrimination. We can find no evidence that the Agency's actions here were motivated by discriminatory animus based on his protected classes. We note that Complainant served as a Temporary Technical Team Point of Contact when the permanent Technical Team Lead was out of the office. ROI, at 178. Complainant also does not dispute that he was appointed to the fourth Temporary Technical Team Lead position, as noted in the AJ's decision.
Finally, with respect to Complainant's argument that the AJ improperly accepted the testimony of untruthful management officials, as noted above, an AJ's credibility determinations based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. We do not find that the AJ abused her discretion here. Further, even without the AJ's credibility determinations, as noted above, Complainant failed to establish that his qualifications were plainly superior to those of the selectee, and there is no dispute that Complainant was appointed to the fourth Temporary Technical Team lead position. Therefore, we find substantial evidence in the record supports the AJ's finding that Complainant failed to establish that he was subjected to discrimination as alleged.
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 order adopting the AJ's decision.
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
July 31, 2014
Date
1The Lead Contract Operations Specialist position is also referred to as a Technical Team Lead (TTL) position.
2 The AJ observed that, in response to her order to provide a more readable copy of the "Resume Evaluation Criteria Template," the Deputy Commander/Team Chief and the Technical Team Lead submitted an exhibit that was reconstructed a week prior to the hearing in December 2010. The AJ noted that Complainant's scores were reconstructed in three of seven areas, but his total score was readable and did not change. The AJ noted that the exhibit was not accompanied by a declaration explaining of the reconstruction. We find, however, that the AJ's comments here are dicta; we decline to address the matter, given that the Agency was able to produce the original document on the second day of the hearing.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120634
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120634