01A13030
08-08-2002
Damon B. Bodeep, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Damon B. Bodeep v. Department of the Army
01A13030
August 8, 2002
.
Damon B. Bodeep,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A13030
Agency No. 980910070
Hearing No. 220-99-5347X
DECISION
Complainant timely initiated an appeal from the agency's final order
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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final order.
The record reveals that, during the relevant period, complainant
was employed as a GS-1102-11, Contract Specialist at the agency's
Tank-Automotive and Armaments Command facility in Warren, Michigan.
The record reflects that on April 6, 1998, a career referral list
was issued for the position of GS-1102-12, Contract Specialist, in the
Acquisition Center. The referral list contained the names of twenty-six
(26) candidates in alphabetical order that were eligible for promotion
to GS-12. All candidates were notified that would be evaluated against
certain criteria, including: technical knowledge, interpersonal skills,
education, and innovation.
The record also reveals that the candidates were notified that discussions
with team leaders, supervisors and customers may be utilized in the
selection process. The selecting official appointed a four member
panel to review the application packages and interview the candidates.
All candidates were asked the same questions and their responses were
recorded by each panel member. The panel members rated each candidate:
superior, good or adequate for each criterion which was then converted
to a numeric score.
The record further reveals that complainant's score placed him nineteenth
among the 26 candidates. The selecting official (SO1), testified that
after spending several hours with the panel and being satisfied that the
panel's evaluative methods were thorough and consistent, he went right
down the list and promoted as many candidates as there were vacancies.
Consequently, the top 17 candidates on the list for GS-1102-12, Contract
Specialist were promoted.
On July 27, 1998, complainant sought EEO counseling. Subsequently,
complainant filed a formal EEO complaint on October 16, 1998, alleging
that the agency had discriminated against him on the bases of race
(Caucasian), sex (male), and age (48) when on or about July 9, 1998,
he was not selected for promotion to the position of GS-1102-12,
Contract Specialist, in the Acquisition Center. At the conclusion of
the investigation, complainant received 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 the agency articulated legitimate nondiscriminatory
reasons for not selecting complainant. Specifically, the AJ found that
the agency's rating of complainant was supported interviews of some
of complainant's former supervisors/team leaders who reported that
complainant did not do well in a teaming atmosphere. In addition,
the AJ noted that the record showed that complainant had difficulty
completing work on time and supporting other team members.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether s/he has
demonstrated by preponderance of the evidence that the agency's reasons
for its actions merely were a pretext for discrimination. Id.
After a careful review of the record, we find that the AJ correctly
concluded that the agency did not discriminate against complainant on
the bases of race, sex and/or age. In finding no discrimination, the AJ
relied on the undisputed evidence regarding the fact that complainant
did not show that his qualifications far exceeded those selectees
outside of his protected classes. In particular, the Commission finds
that complainant's former supervisors stated that complainant failed
to consistently follow through on assignments, did not show initiative,
needed to improve his work ethic to make it consistent with a GS-12, and
on several occasions, customers complained about things not being done.
Under these circumstances, we find that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. The burden now
shifts to complainant to show that the proffered reasons were a pretext
for discriminatory animus.
In a non-selection case, pretext may be demonstrated in a number of ways,
including a showing that complainant's qualification are observably
superior to those of 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). However, in the instant case, we
find that complainant has presented no evidence that his qualifications
were �observably superior� or even equal to the individuals selected for
the temporary assignments. We also find that complainant has presented
no evidence that other employees similarly situated were treated more
favorably.
Based on the foregoing, the Commission finds that grant of summary
judgment was appropriate, as no genuine dispute of material fact exists.
We find that the AJ's decision properly summarized the relevant facts
and referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's protected
classes. Therefore, after a careful review of the record, including
complainant's contentions, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency'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
August 8, 2002
__________________
Date