01982880
12-17-1999
David J. Krane, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
David J. Krane, )
Complainant, )
) Appeal No. 01982880
v. ) Agency No. 97-0500
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (White), sex (male), age (over 40) and in reprisal for prior
EEO activity in violation of Title VII of the Civil Rights Act of 1964,
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.<1>
Complainant alleges he was discriminated against when he was he was
not selected for the position of Assistant Regional Counsel in August
1996. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission affirms the FAD.
The record reveals that during the relevant time, complainant was employed
as a senior attorney (GS-14 Legal Counsel), at the agency's Office of
Regional Counsel in Hines, Illinois. Believing he was discriminated
against when the agency selected a younger, Black male for the (GS-14)
position of Assistant Regional Counsel, complainant sought EEO counseling
and filed a formal complaint on September 27, 1996. At the conclusion
of the investigation, when complainant failed to make a timely request
for a hearing before an EEOC Administrative Judge, the agency issued a
final decision from which complainant now appeals. On appeal, complainant
argues that the FAD ignored direct evidence of discrimination. The agency
responds that even if an illegal motive played a role in this selection,
complainant would not have been offered the position because he ranked
below the agency's second choice, a White male.
After a careful review of the record, based on the standards set forth
in McDonnell Douglas v. Green, 411 U.S. 792 (1973), Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency that complainant failed to
establish either a prima facie case of sex discrimination or retaliation.
In reaching this conclusion, we note that the Selectee was also a male
and that there is no evidence in the record to rebut the Selecting
Officials' denial that they had any awareness of complainant's prior
protected activity. We also agree with the agency that complainant
established prima facie cases of race and age discrimination since the
Selectee was Black and although over forty years of age, approximately
seven years younger than complainant. See O'Connor v. Consolidated Coin
Caters Corp., 517 U.S. 308, 311-12 (1996); Daniels v. Department of the
Air Force, EEOC Petition No. 03970009 (July 31, 1997).
The agency articulated legitimate, nondiscriminatory reasons for
its selection, namely that the Selectee, who tied with another White
candidate for the highest rating based on answers to questions posed by
the Selecting Officials, received the highest score in the most heavily
weighted category, management philosophy. The Selecting Officials also
believed that the Selectee, who was from a different agency facility,
would be best qualified to assist in transforming complainant's office
from a place of back biting, turmoil and low morale into a better
working environment.
The Commission concludes that complainant has not shown that the Selecting
Officials' explanation lacks credibility. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253-256 (1981);
St. Mary's Honor Center v. Hicks, 509 U. S. 502 (1993). While we
find that complainant was extremely well qualified for the position
and had many years more experience in the agency's regional offices
than the Selectee, we are not persuaded that the Selecting Officials
acted with discriminatory intent. We note that the record is replete
with references to the �past troubled history� of the Hines, Illinois
facility. The Selecting Officials were looking for an applicant whose
management style could ameliorate the environment and improve morale
among the employees. A subjective criterion such as this is frequently
relied upon in selections for supervisory positions, and the use of such
a criterion is not, in and of itself, an indicator of discriminatory
motivation. See Fodale v. Department of Health and Human Services,
EEOC Request No. 05960344 (October 16, 1998).
The only evidence complainant presented to suggest that race motivated the
selection was that one of the Selecting Officials made the remark that
he did not want to hire another White, male like himself. Complainant
contends that this remark constitutes direct evidence of discrimination.
The Commission disagrees with complainant's contention. In reaching
this conclusion, we find that the Selecting Official's offhand comment
to a female attorney from a different agency facility was an isolated
statement intended to communicate the Selecting Official's frustration
with his difficulty in recruiting applicants from outside the Hines,
Illinois facility. The Commission concludes that rather than being
motivated by discriminatory animus towards complainant's race or age,
the Selecting Officials believed it to be more important that they
select an applicant whose management philosophy would best comport with
their goals for improvement and whose status as an outsider would have a
sanguine effect on office morale. See Workman v. Department of the Navy,
EEOC Appeal NO. 01973815 (September 3, 1999).
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
December 17, 1999
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant 1 On 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.