01974141
11-30-1999
Denise G. Henderson, Complainant, David J. Barram, Administrator, General Services Administration, Agency.
Denise G. Henderson v. General Services Administration
01974141
November 30, 1999
Denise G. Henderson, )
Complainant, )
) Appeal No. 01974141
) Agency No. 95-R5-5FQC-DGH-04
)
David J. Barram, )
Administrator, )
General Services Administration, )
Agency. )
)
DECISION
INTRODUCTION
On April 22, 1997, Denise G. Henderson (complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated March 19, 1997, concerning her
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.<1>
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
her based on race (Black) when she was not selected for a position to
which she had applied.
BACKGROUND
Complainant was employed by the agency as a Contract Administrator,
GS-1102-11, in the Federal Supply Service office in Chicago, Illinois.
She applied for the position of Contract Administrator, GS-1102-12 (the
Position) in September 1995, and was referred to the Selection Official
(SO) for consideration along with three other candidates. The SO had an
evaluation panel of three people (the Panel) interview all four candidates
and make a recommendation to her as to who was the best candidate for the
Position. The Panel recommended a candidate other than the complainant.
The SO followed the Panel's recommendation and chose that candidate
(the Selectee). Complainant was informed that she was not selected in
November 1995.
Complainant filed a formal complaint on April 2, 1996, alleging
discrimination on the basis of race when she was not selected for
the Position in November 1995. The agency accepted the complaint for
investigation and processing. At the conclusion of the investigation, the
agency issued a copy of its investigative report and notified complainant
of her right to request an administrative hearing. After complainant
requested a decision on the record, the agency issued its FAD on March
19, 1997.
In its FAD, the agency found that the complainant had established
a prima facie case of race discrimination because she demonstrated
that she was a member of a protected class (Black), she applied for
the Position, was qualified but was not selected, and the person who
was selected (the Selectee) was not a member of her protected group.
The agency stated that its legitimate, nondiscriminatory reason for
not selecting complainant was that the Selectee was judged by the Panel
to have superior leadership qualities. One of the responsibilities of
the Position was to function as a Team Leader, so the SO and the Panel
accordingly placed an emphasis on leadership abilities. The Selectee
was also judged to have superior written and oral communication skills.
The agency found that complainant had failed to establish that the
legitimate, nondiscriminatory reason articulated by the agency for its
decision was a pretext for discrimination.
On appeal, complainant argued extensively that the Panel and the SO
improperly relied on "subjective" criteria, such as her communication
skills and leadership abilities. She argued that only "objective"
criteria should have been used by the SO when choosing who would receive
the Position, and that "approachability and ability to interact well
with those whom she would supervise" were not requirements which could
be found in the Vacancy Announcement. She claimed that in the Federal
Government there is no "discretion" which can be exercised by selecting
officials when choosing who will fill a position. Additionally,
complainant claimed that the use of the Panel itself was inappropriate,
that there is no provision for a "ratifying official" (as she called
the SO) when making personnel decisions, and that the SO's use of the
Panel was her way of covering her discrimination in order to choose the
Selectee for the Position. Complainant claimed to be better qualified
for the Position than the Selectee because she had more tenure in the
agency than the Selectee, and had (in her opinion) worked on more numerous
and more difficult contracts than the Selectee. She also argued that
because the SO had filled in the Selectee's evaluation form for the
Selectee's supervisor, who was out of the office on leave at the time
that the form needed to be submitted for consideration for the Position,
that the SO had improperly intervened in the selection process.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, 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 Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the 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
Center v. Hicks, 509 U.S. 502 (1993).
The agency correctly determined that complainant had met her prima facie
case of race discrimination. In response, the agency presented evidence
that complainant was not selected because the evaluation panel and the SO
found the Selectee to be better qualified for the Position due to the Team
Leader responsibilities and their collective evaluation of the Selectee's
and the complainant's relative leadership and communication skills.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for its nonselection of complainant.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
We find that complainant has failed to do so. Complainant argued that
subjectivity and discretion were improperly used in the selection process.
We note that page 2 of the Vacancy Announcement lists the qualities of
"ability to communicate effectively orally," "ability to communicate
effectively in writing," and "ability to lead" as "qualities important
for the successful performance" of the Position. Complainant also
argued that selecting officials cannot rely on their discretion when
making a personnel decision. The Commission has noted that the agency
has the discretion to choose among equally qualified candidates so long
as the decision is not based on unlawful factors such as race or sex
or national origin. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987);
Abood v. Agency for International Development, EEOC Appeal No. 01943526
(August 31, 1995). Court and Commission precedent have consistently
held that when there are equally desirable candidates competing for the
same position, the selecting official may exercise his/her prerogative
in choosing between the candidates and, absent discrimination, a trier
of fact should not substitute his judgment for the legitimate exercise
of managerial discretion. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981); Jenkins v. Department of Interior, EEOC Request No. 05940284
(March 3, 1995); Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996).
Complainant argued that she was better qualified than the Selectee, by
virtue of her longer length of service with the Federal Government, and
her experience at the agency. Complainant has produced no evidence,
either testimonial or documentary, to support a finding that her
qualifications for the position were so plainly superior to those of the
Selectee as to warrant a finding of pretext. Patterson v. Department of
the Treasury, EEOC Request No. 05950156 (May 9, 1996); Shapiro, supra.
Greater years of experience do not necessarily make an individual
more qualified for a particular position. McGettigan v. Department
of the Treasury, EEOC Appeal No. 01924372 (February 24, 1993). Nor
do they automatically make one candidate more qualified than another.
Ford v. Department of Health and Human Services, EEOC Appeal No. 01913521
(December 19, 1991).
Complainant further argued that the use of the Panel was improper and
that the SO then became a mere "ratifying official," which she also
claimed was improper. The agency can establish a system to evaluate
candidates as long as the system is applied evenhandedly. According to
the agency's Merit Promotion plan and the collective bargaining agreement
included in the record, the agency allows for the use of panels to
evaluate candidates when making personnel decisions. An affidavit from
the Chief of the Employment Branch, Personnel Division for the region
where complainant's office was located, stated that evaluation panels
are proper to use when interviewing candidates, as long as all of the
candidates are interviewed. The record reveals that all four candidates
recommended to the SO were interviewed by the Panel, and that the Panel
asked each candidate the same questions. We find, therefore, that the
use of the Panel was not improper.
The complainant finally argued that SO improperly filled in the Selectee's
evaluation form for Selectee's supervisor. Although the SO said she
would not complete evaluation forms for employees she both supervised and
would be considering for the Position, she did complete the Selectee's
evaluation form. We find, however, that the SO completed the form using
answers supplied by the Selectee's direct supervisor over the phone.
That supervisor provided an affidavit confirming that this was true.
We find that although this may have had the appearance of impropriety,
it does not prove that complainant was discriminated against when the
SO chose the Selectee for the Position.
Therefore, for all of the above reasons, the agency's determination
that complainant failed to establish that she was discriminated against
was correct. Accordingly, the decision of the agency was proper and is
AFFIRMED.
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:
Nov. 30, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
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.