01985930
05-12-2000
Douglas F. Palo, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Douglas F. Palo v. Department of Agriculture
01985930
May 12, 2000
Douglas F. Palo, )
Complainant, )
) Appeal No. 01985930
v. ) Agency Nos. 950929
) 960213
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
The complainant timely initiated an appeal of a final agency decision
(FAD) dated June 26, 1998, concerning his complaint of unlawful employment
discrimination on the bases of sex (male) and reprisal (prior EEO
activity), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> The complainant alleged that
he was discriminated against when: (1) on July 18, 1995, he was not
selected for a GS-14 Program Manager position; and (2) in November
of 1995, he received a performance appraisal on which two elements
were rated lower than on the previous year's performance appraisal.
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission affirms the FAD.
The record reveals that during the relevant time, the complainant
was employed as a GM-13 Staff Officer at the agency's Food and
Safety Inspection Service (FSIS) in the Washington, D.C. facility.
The complainant alleged that although he was the best qualified
candidate for the Program Manager position (Vacancy Announcement (VAN)
FSIS 95-77), the agency engaged in a pattern of discrimination against
men, which resulted in the selection of a minimally qualified female.
Believing he was a victim of sex discrimination, the complainant sought
EEO counseling and, eventually, filed a complaint on September 27, 1995,
(agency complaint no. 950929).
Subsequently, the complainant received a performance rating of "Superior"
with several performance elements rated lower than on the previous
year's "Superior" rating. Believing he was a victim of retaliation, the
complainant sought EEO counseling and, subsequently, filed a complaint
on February 5, 1996, (agency complaint no. 960213). The agency properly
consolidated the complaints for investigation. At the conclusion of
the investigation, the complainant requested that the agency issue a FAD.
The agency concluded that the complainant established prima facie cases
of sex discrimination and reprisal when he demonstrated that similarly
situated employees not in his protected classes were treated differently
than he under similar circumstances. However, the agency found that
management had articulated legitimate nondiscriminatory reasons for not
selecting the complainant for promotion and for the two lowered element
ratings on his 1995 performance appraisal. The agency further found
that the complainant failed to show that management's explanations were
merely pretext for discrimination and reprisal.
On appeal, the complainant contended that the agency failed to consider
a number of his arguments. Specifically, he contended that the agency
failed to "fully read/comprehend the complete case file." He alleged
that the investigation was incomplete and inadequate, that the agency
has a continuing pattern of sex discrimination, that he was better
qualified than the female selectee, that the agency ignored written
evidence over fabricated testimony, that the agency violated several
agency policies when it did not convene a "promotion panel" and when
it made a second Program Manager selection from the original roster,
and that the ratings he received on his performance appraisal were made
in an effort to justify the score that the selecting official (SO),
also his rating official, arrived at on his promotion matrix.
The agency requests that we affirm its FAD finding no discrimination.
Claims of discrimination and retaliation are examined under the
three-part analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). For complainant to prevail, 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). 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
the complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990).
Nonpromotion Claim
The complainant points to numerous witnesses he had listed in his
submission to the investigator, who were not interviewed during the
investigation in support of his incomplete/inadequate investigation
allegation. We note that after a complete review of the case file, we
agree with the investigator that additional interviews would not likely
yield further material evidence on matters specific to the complainant's
sex discrimination and reprisal allegations. See Investigative File
(IF), Exhibit (Exh) 21. For example, several of the complainant's named
witnesses were named to confirm that back in 1991, headquarters and field
supervisors at a Total Quality Management meeting were informed that
agency opportunities for women and minorities must improve. IF, Exh 6,
page 25. We are not convinced that witnesses were needed to confirm such
a meeting took place, nor are we persuaded that such a meeting resulted
in the agency's alleged perpetration of sex discrimination upon the
complainant in 1995. Moreover, we are similarly unpersuaded that because
the last three Program Manager positions were allegedly filled with women,
the complainant's assertion that the agency has engaged in a continuing
pattern of sex discrimination against male employees is supported.
The record does not contain any evidence that the complainant even
applied for any of the three previous positions.
We note that the record contains a sworn affidavit from the SO in
which he avers that prior to the closing date of VAN FSIS 95-77, a
second Program Manager position became open in his division. IF, Exh 7.
After consulting with the personnel office, he was assured that he could
select two candidates from the promotion certificates provided for VAN
FSIS 95-77. Id. He further averred that in making his selections,
he relied on the application materials submitted by the candidates, his
personal recollection of the candidates and their performance appraisal
ratings. Id. The SO averred that he evaluated the candidates by making
notes to himself and preparing a matrix in which he scored the applicants'
qualifications against the job elements described in the VAN. Id.
We note that copies of the application packages, performance ratings,
the SO's evaluation notes and his matrix are included in the record.
IF, Exhs 12, 11d.
The record shows that six men and one woman had a higher composite
scores on the matrix than did the complainant and one man and one
woman had equal scores. The record further shows that the SO offered
positions to two men (CG and JK) and the one woman (MS) who scored higher
than the complainant. IF, Exh 11c. CG declined the offer. IF, Exh 9.
The complainant argued that CG declined the promotion as a ruse to protect
the SO from a discrimination complaint. However, the record contains
a sworn affidavit from CG in which he avers that at the time he applied
for the position he had the intention of only benefitting himself. Id.
After carefully considering the offer with his family and his current
supervisor, he decided that with all the upcoming changes within the
agency his career advancement was better served by retaining the position
he was in. Id.
The complainant asserted that he could believe CG's explanation but for
the written evidence that the agency failed to consider. The record
contains the promotion certificate on which the complainant and MS
are listed as competitive candidates with an attachment containing the
names of two male noncompetitive candidates including CG. IF, Exh 11c.
The promotion certificate contains MS as the employee selected and is
signed by the SO on July 14, 1995. Id. The attachment shows that the
SO offered the position to CG on July 14, 1995, and that CG declined
the offer on July 17, 1995. Id. Therefore, the complainant contends
that the SO selected MS prior to receiving CG's declination of the
allegedly legitimate offer to him, proving that the SO intended to fill
the position with a female from the beginning.<2> This contention is
not consistent with the sworn affidavits from both the SO and CG. IF,
Exhs 7, 9. Moreover, we note that the promotion certificate contained
the date of June 14, 1995 in block 4 of the form. Further, the form
contained the following statement, "Certificate invalid if NOT used within
30 days of the date appearing in block 4. After that date competitive
procedures will have to be reapplied before the position can be filled."
The certificate was signed by the SO on July 14, 1995. Thus, it appears
the certificate was backdated in order to retain its validity.
In nonselection cases, the Commission has held that pretext may
be demonstrated in a number of ways, including a showing that the
complainant's qualifications are observably superior to those of
the selectee. See Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). However, an employer has the discretion
to choose among equally qualified candidates. See Hasty v. Department
of Defense, EEOC Appeal No. 01952006 (August 15, 1997) (citing Canham
v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). The complainant
contended that he was "clearly the best qualified candidate" for VAN
FSIS 95-77. Specifically, the complainant stated that his import
inspection experience and government supervision experience made him
more qualified than MS. The record shows that the complainant had two
years of supervisory experience in 1985-1987, while MS had five years of
supervisory experience from 1983 through 1988. IF, Exh 12. Moreover, the
SO, in his sworn affidavit, stated that Program Managers focus on policy
and management issues, rather than on the import inspection issues, which
Staff Officers, like the complainant, require to accomplish their jobs.
IF, Exh 7. We note that a copy of the Position Description in the
record confirms that supervision and management aspects of the position
comprised a majority of the responsibilities for this position. IF,
Exh 11b. The SO further averred that MS possessed both the knowledge
and communication skills necessary for the Program Manager position.
IF, Exh 7.
The complainant argued that he would have scored higher on the promotion
matrix if he had received a "Superior" for element b (ability to establish
and maintain relations with a variety of outside groups) rather than
a "Meets" rating and points to the "Exceeds" rating he received for
critical element 5 (represent and liaison activities) on his subsequent
performance appraisal as proof that he deserved the higher rating on
the performance matrix. We note that the record does not contain a
description for the elements on the complainant's performance appraisal,
so there is no way to know whether these elements are comparable.
Even assuming that they are, the complainant's composite matrix score
would rise two points, still leaving him two points behind MS. We do
not find that the complainant has demonstrated that his qualifications
are observably superior to those of the selectee.
The complainant contends that the agency violated its own Merit Promotion
Directive (MPD) 4335.1 by its failure to utilize a review panel in
creating the promotion certificates. Specifically, the complainant
states that the MPD requires that a promotion panel convene anytime
there are more than 10 qualified applicants for a position and here
there were 18 applicants forwarded to the SO. The MPD states, "[a]
promotion panel meeting is not required for an announced position with
10 or fewer qualified applicants." IF, Exh 17a; Complainant's appeal
file, Doc. 8. The record contains a sworn affidavit from the Personnel
Specialist who had forwarded the promotion certificates to the SO. IF,
Exh 8. In her affidavit, she avers that the agency interprets the MPD
to mean that a promotion panel is convened when there are more than 10
applicants competing within the same grade. Id. Here, the record shows
that there were six grade 12 individuals on a promotion certificate and
10 grade 13 individuals on the other promotion certificate. IF, Exh 11c.
The VAN shows that the position was advertised as a grade 13/14. IF,
Exh 11a. Therefore, the personnel specialist averred that the MPD did
not require the convening of a promotion panel. IF, Exh 8.
We find that the agency acted under its usual procedure, if not the letter
of the MPD, and its reasons are legitimate. It is well settled that
some procedural irregularities in themselves do not establish prohibited
discrimination. See Hill v. Department of the Air Force, EEOC Request No.
05950123 (July 20, 1995). Thus, the agency's failure to adhere to the
requirements of the MPD do not, contrary to the complainant's contention,
show pretext.
The complainant further contends that the agency violated its regulations
by filling the second vacancy from the promotion certificates for VAN
FSIS 95-77, which stated there was only one vacancy. The record shows
that this issue was brought before a Dispute Resolution Board which found
that no agency regulations address this issue. IF, Exh 13. Furthermore,
we note that a male candidate (JK) was selected for the second position,
which would tend to disprove any discriminatory intent by the SO.
Performance Appraisal Claim
The complainant established a prima facie case of reprisal because of
the proximity in time between his prior protected EEO activity and the
lowered appraisal rating on two of his performance elements. The record
shows the complainant filed his nonpromotion EEO complaint in September
of 1995 and his rating official knew of the activity because he was the
SO in the nonpromotion complaint action. The complainant's performance
appraisal covering the period October 1, 1994, to September 30, 1995,
although not signed or dated by him, shows the last dated signature
occurred on November 11, 1995. IF, Exh 14.
The complainant's contentions focus on the alleged discrepancies between
the ratings on the SO's promotion matrix and the subsequent ratings on
his performance appraisal. Specifically, the complainant stated that
on the promotion matrix he was rated "Superior" for element a (develop
and apply policies, procedures, and regulations of a food regulatory
agency), while he received only a "Meets" rating on the "Administer
Import Inspection Program," element of his performance appraisal.
He further contends that, as previously noted herein, he received a
"Meets" for element b (ability to establish and maintain relations with
a variety of outside groups) on the promotion matrix and an "Exceeds"
rating for critical element 5 (represent and liaison activities) on
his subsequent performance appraisal. He further points out that in
the SO's affidavit it is averred that the SO had meetings with the
complainant regarding his performance deficiencies in May of 1996,
while the performance appraisal period ended in 1995.
In his sworn affidavit, the SO avers that he met with the complainant on
six occasions to discuss performance deficiencies in his written work,
technical advice given to field offices and his interpersonal skills.
IF, Exh 7. The SO further averred that the complainant appeared to
ignore his suggestions for improvement and always wanted to argue. Id.
The record is devoid of any argument or evidence by the complainant that
these meetings did not occur or that he deserved higher ratings in the
two elements which were rated lower than the previous year's performance
appraisal. We also note that attached to the SO's sworn affidavit is
a list of the dates on which these performance meetings took place and
all of them occurred between March 1995 and September 1995, including
one listed in May 1995. Id.
While the alleged inconsistencies between the promotion matrix and the
complainant's performance appraisal may seem unfair, we find that this
mere casting of doubt on the agency's articulated reason for the rating
does not suffice to meet his burden of showing discriminatory intent.
See Watkins v. U.S. Postal Service, EEOC Request No. 05910379 (July
5, 1991).
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
the Commission agrees with the agency that the complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note that the only new argument on appeal by the
complainant was that the investigation was incomplete and inadequate.
Therefore, after a careful review of the record, including the
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 (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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 12, 2000
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
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.
2 The Commission notes that while preselection may serve to discredit
the reason given for the selection decision, in the absence of evidence
establishing that it was based upon a basis prohibited by Title VII or
any of the other laws administered by this Commission, the Commission
finds that is not tantamount to discrimination. See Nickens v. NASA,
EEOC Request No. 05950329 (February 23, 1996).