01985929
04-24-2000
Craig C. McKinley, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Craig C. McKinley v. Department of the Army
01985929
April 24, 2000
Craig C. McKinley, )
Complainant, )
)
v. ) Appeal No. 01985929
) Agency No. BGASF09705H0230
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
On July 28, 1998, Craig C. McKinley (hereinafter referred to as
complainant) filed a timely appeal from the July 1, 1998, final decision
of the Department of the Army (hereinafter referred to as the agency)
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. The appeal is timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the basis of sex when he was not selected for the position of
Traffic Management Specialist, GS-14, in December 1996.
Complainant filed his formal complaint on May 21, 1997. Following an
investigation, he was advised of his right to request a hearing before an
EEOC Administrative Judge or an immediate final agency decision (FAD).
Complainant did not respond, and the agency issued a FAD, finding no
discrimination.
Complainant worked as a Traffic Management Specialist, GS-13, in the
agency's Travel and Passenger Services Branch. The agency posted a
job notice seeking candidates for two positions of Traffic Management
Specialist, GS-14, in the Arrangements Branch, Project Management Office.
Ten candidates (3 females, 7 males) were referred for selection to
the selecting official (SO), Chief of the Arrangements Branch. The SO
concluded that complainant, a male (E1), and a female (E2) were the best
qualified candidates for the position, and chose E1 and E2. Complainant
challenged the selection of E2, contending that she was selected because
of her sex, that the SO tailored the duties of the position to favor E2,
that E1 was chosen to hide the discrimination against him, and that he
was the superior candidate compared to E2. The record shows that both
the complainant and E2 occupied GS-13 positions in the Project Management
Office of the Defense Travel System. A comparison of their applications
reveals that both had extensive background and experience in military
transportation and had received high ratings with numerous awards.
The SO stated that she examined the applications of the candidates and
based her decision on the three best candidates' applications, including
their responses to the knowledge, skills and abilities; her personal
knowledge of the candidates, having worked with each of them; and the
responses she received from supervisors of the three candidates. She also
denied that she drafted any part of the description for the position and
asserted that she chose the best candidates. She disputed complainant's
assertion that his experience was more valuable for the position than
E2's past experience. With regard to complainant's application, the SO
expressed a concern about several false statements.<2> Finally with
regard to her comment that complainant had "balls" to apply for the
position, the SO explained that she meant complainant had a lot of gall
to apply for the position when he had criticized her and disparaged the
operation of her office.
In his statement, complainant argues that the two GS-14 vacancies
were bundled to mask discrimination against him. He criticizes the
SO's failure to employ a panel for the selection and criticizes her
performance as a manager. He claims that he was better qualified than E2,
having greater experience in the specialized area of passenger travel,
and he repeats his contention of pre-selection. With regard to the
false statements in his application, he asserts that his supervisor made
untrue statements concerning complainant's experience (see fn. 2), but
does not submit evidence or documents supporting his claim of a temporary
promotion or serving as a program manager. Finally, complainant asserts
that the SO's comment that he had "balls" to apply for the position was
evidence of animus based on his gender.
Claims, such as the complainant's, alleging disparate treatment are
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). Initially, for
complainant to prevail, s/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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Following this established order of analysis is
not always necessary where the agency articulates an explanation for
its actions. In such cases, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis--the ultimate question of
whether complainant has shown by a preponderance of the evidence that the
agency's action was motivated by discrimination. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
It is complainant's burden to demonstrate by a preponderance of the
evidence that the agency's action was based on prohibited considerations
of discrimination, that is, its articulated reason for its action
was not its true reason but a sham or pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that the agency articulated legitimate, nondiscriminatory reasons
for its actions, i.e., the SO stated that she chose E2 based on her review
of the applications, her personal knowledge of the candidates, and the
information she received from the supervisors of the three candidates.
The record supports the SO's assessment, in that, it shows that E2 was
highly qualified and had outstanding performance evaluations, including
numerous awards and several quality step increases. With regard to the
complainant, she expressed her reservations about the veracity of his
application and his disparagement of her office management.
The burden now returns to complainant to demonstrate that the agency's
articulated reasons for its actions were the result of discrimination.
We conclude that complainant has failed to refute the agency's reasons
for its selections and to establish that the agency's reasons were
pretextual. The record shows that complainant and the selectee were
both among the best qualified candidates and that both had extensive
experience in military travel and transportation. The SO's reasons for
favoring the selection of E2 over that of the complainant, i.e., her
reservations about the veracity of his application and his disparagement
of her office, were not unreasonable or unwarranted. While complainant
argues that he was the superior candidate, we find that complainant
has not shown that his qualifications were so plainly superior to the
selectee's as to demonstrate pretext. Bauer v. Bailar, 657 F.2d 1037,
1048 (10th Cir. 1981). Further, complainant's speculation that the
agency "bundled" two positions in order to discriminate against him is
without foundation in the record. Finally, while perhaps inelegant, the
SO's comment about complainant's gall to apply to her office does not,
by itself, demonstrate pretext.
Complainant also contends that the agency preselected the E2. We note
that complainant contends that the SO tailored the vacancy description to
favor E2, but there is nothing in the record to show her involvement in
preparation of the document. Further, while evidence of preselection
or favoritism may act to discredit an agency's explanation for its
selection, preselection does not violate Title VII when it is based
on the qualifications of the selectee and not on some basis prohibited
by Title VII. Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th
Cir. 1986); Hawkins v. McPherson, 42 FEP Cases 699, 703 (D.D.C. 1986).
Complainant's contentions, without more, are insufficient to show
sex discrimination. Based upon our review of the record, we conclude
that E2's selection was based upon her qualifications and not upon a
consideration prohibited by Title VII.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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:
04-24-00
Date Carlton 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.
2In his application, complainant claimed that he had received a temporary
promotion and that he was program manager of the rental car program.
According to his immediate supervisor, however, he never received a
temporary promotion nor was he the program manager for the rental car
program, although he had experience in this area. In addition, the SO
stated she was bothered that the complainant did not include her among
his former supervisors.