0120070269
05-07-2009
Earl H. Thompson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Earl H. Thompson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120070269
Hearing No. 100-2005-00855X
Agency No. FSA-2005-00026
DECISION
Complainant filed an appeal with this Commission from the September 15,
2007 agency decision which implemented the August 1, 2007 decision of
the EEOC Administrative Judge (AJ) who found no discrimination.
BACKGROUND
Complainant alleges 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In his complaint, complainant, a Systems Accountant in the agency's
Financial Systems and Procedures Branch in the Foreign Commodity
Management Systems Section (FCMSS), alleged that the agency discriminated
against him on the bases of race (White), sex (male), disability
(degenerative back discs), age (62), and in reprisal for prior protected
EEO activity when:
1. In June 2003, complainant was not selected for Section Head,
Supervisory Accountant GS-0514 position in Alexandria, Virginia, as
advertised under Vacancy Announcement No. UF171479JB.
2. On May 13, 2004, complainant was not selected for the position
of Section Head, Supervisory Systems Accountant, GS-0510-14, Foreign
Division in Alexandria, Virginia, as advertised under Vacancy Announcement
No. UF181615JB.
3. On an unspecified date, the Director of the Financial Management
Division expressed her hatred for "old White men."
4. Since filing this claim, complainant has been denied the opportunity
to serve as Acting Supervisory Systems Accountant (Section Head)
and his long scheduled training was cancelled.
After an investigation of his complaint, complainant requested a hearing.
The AJ issued a decision without a hearing (summary judgment) over the
objection of complainant.
On appeal, complainant argues that the Report of Investigation (ROI) did
not include basic documents and information highly relevant to the case,
such as the background and qualifications of the selectee (Person A);
that complainant requested the information through discovery requests
to the agency; and that the agency raised untimely objections, including
that the requested discovery was protected by the Privacy Act.
Complainant also asserts on appeal that the AJ impermissibly granted
summary judgment although there was a large number of disputed issues
of material fact; that the AJ openly engaged in weighing evidence at
the summary judgment stage; that the AJ refused to require the agency to
provide basic discovery; that the AJ chose to ignore strong and detailed
affidavits from complainant, a co-worker, and a former management official
that were in opposition to the agency's evidence; and that the AJ failed
to address evidence of pretext.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983).
In nonselection cases, complainant may be able to establish pretext
with a showing that his qualifications were plainly superior to those of
the selectee. Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
The Commission also notes that the agency has broad discretion to
set policies and carry out personnel decisions, and should not be
second-guessed by the reviewing authority absent evidence of unlawful
motivation. Texas Burdine, 450 U.S. at 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). The trier of fact
must understand that the focus is to be on the employer's motivation,
not its business judgment. See Thomas v. Department of Transportation,
EEOC Appeal No. 01945798 (December 12, 1996) (citing Loeb v. Textron,
Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979)).
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Preliminary Matter
We find that the record was adequately developed for summary disposition
on the merits of the claim. The Commission notes that in an Order, dated
November 21, 2005, the AJ who had extended discovery previously, kept the
deadline for discovery as December 9, 2005. Complainant filed a Motion
to Compel on December 19, 2005. In a footnote in her decision on the
merits, the AJ ruled that that complainant's motion to compel was untimely
and, also, that complainant sought to discover matters not relevant to
the accepted issues. We agree with the AJ that complainant's motion to
compel was untimely. The Commission does note, however, that the ROI
did not provide the qualifications of Person A, who was the selectee.
The qualification of a selectee is probative in establishing pretext.
Nonetheless, we find its absence in the record under the circumstances
of this case did not prejudice complainant. We are satisfied that
complainant has been given a full and fair opportunity to demonstrate
whether the agency's reasons for its actions were pretextual. See Parker
v. United States Postal Service, EEOC Request No. 05900110 (April 30,
1990); Lorenzo v. Department of Defense, EEOC Request No. 05950931
(November 6, 1997).
Claim 1
In an acceptance and dismissal of claims letter, dated November 16,
2004, the agency dismissed claim 1 on the ground that complainant
failed to initiate timely EEO Counselor contact pursuant to 29
C.F.R. 1614.105(a)(1). Complainant submitted his objection to the
agency's dismissal of claim 1 to the AJ. The AJ found that complainant's
EEO contact was untimely.
The record reveals that the vacancy was first advertised in April 2003,
with an opening date of April 7, 2003, and a closing date of April
28, 2003. No selection was made. In his affidavit, complainant
stated that he interviewed for the position in June 2003, but that
he heard nothing further about his application until September 2003,
when the Acting Section Head told him that management had decided to
re-announce the position. He stated further that he met with the Chief
of the Financial Systems and Procedures Branch (FSPB Chief) on the same
day in September to discuss the decision to re-announce the position.
Complainant stated that the FSPB Chief told him that although each of
the three candidates interviewed had various strengths with complainant's
strengths being particularly strong, none of the applicants had what he
was looking for.
The Counselor's Report reflects, and we find, that complainant did not
initiate EEO Counselor contact until June 24, 2004, which was beyond
the requisite 45 days when complainant should have reasonably suspected
discrimination. Complainant has not provided adequate justification
for extending the limitation period.
Claim 2
The AJ assumed, without deciding, that complainant had established a prima
facie case on all bases. She concluded that the agency had articulated
a legitimate, nondiscriminatory reason for not selecting complainant.
The AJ noted that the FSPB Chief had cancelled the first vacancy to
broaden the applicant pool and, also, because there was a re-organization
under consideration which could potentially eliminate the advertised
position by combining the sections. She also noted that the FSPB Chief
stated that the position was re-advertised; that three candidates,
including complainant were found qualified; that one of the candidates
withdrew from the interview; that one candidate did not perform well;
and that complainant scored the highest in the interview.
The AJ further noted that the FSPB Chief stated that although complainant
scored the highest in the interview and had a good skills set in the
program in which he had been working for the last 10 years, he did
not want to select complainant because he did not complete his work;
needed assistance with written products; was the lead on a major project
that failed, with other staff having to complete the work; and that
complainant did not always buy into major projects assigned to him
with the result that complainant's projects were not always completed.
The AJ noted that the FSPB Chief also stated that one project assigned
to complainant was for him to resolve a weakness identified by the
auditor and when the weakness was not corrected, the auditor elevated
the weakness to a material weakness for the agency. She noted also that
the FSPB Chief stated that complainant had not exhibited the ability to
complete important projects and that complainant did not maintain the
financial instructions for which he had responsibility.
The AJ noted that FSPB Chief did not select anyone from the Vacancy
Announcement and that the FSPB Chief filled the position with a lateral
transfer after being approached by another Branch Chief who was looking
to place Person A. The AJ noted further that the FSPB stated that
he selected Person A because he had a good working relationship with
employees who worked for him; he had been a manager within his division
for the last several years; and that he knew Person A's background because
he was on an interview panel for the position that Person A held before
his present position. The AJ noted that although complainant argued that
he had better professional credentials, more experience, and was a proven
manager who had supervised at various levels, he failed to proffer any
evidence to show that the FSPB Chief's evaluation of his performance
and skills was not true and failed to rebut the FSPB's statement that
he would not have selected complainant even if complainant was the only
available candidate.
The AJ also indicated that complainant had argued that the Director of
the Financial Management Division (FMD Director) essentially told the
FSPB Chief not to hire complainant. The AJ noted that the FSPB Chief
stated that he was the responsible management official and sole selecting
official; that he would not have chosen complainant regardless of the
FMD Director's input; and that he only ran his choice by the FMD Director
at the end of the process to receive final approval. The AJ found that
complainant failed to proffer any evidence to support his argument that
the FMD Director was the selecting official and not the FSPB Chief and,
also, that the FSPB Chief did not select him for prohibited reasons.
Complainant stated in his affidavit that he was a Systems Accountant
with the agency for 13 years. He also stated that he had a disability
to his back and that his condition was diagnosed in 1984, while he was
in the Army on active duty. He stated his condition was diagnosed as
a damaged disk that would continue to deteriorate over time and that he
had surgery for the first time in July 1989, to repair a disc rupture.
Complainant also stated in his affidavit that over the past 12 to 18
months, the pain had worsened substantially and that even walking short
distances were extremely painful. Complainant stated further that he got
to the point where he could not walk with his back straight. Complainant
stated that during this time the FSPB Chief asked him if he realized
how stooped he had become and encouraged complainant to see a doctor.
Complainant also stated that the FSPB Chief knew about his disability
for years. Complainant stated that he had surgery on November 23, 2004.
He also stated that management was somewhat supportive prior to his most
recent surgery and that the FSPB Chief supported his efforts to acquire an
ergonomic chair, keyboard, and workstation to ease the strain on his back,
right arm, and shoulder but that the agency's Disability Specialist was
not supportive. He also stated that since his return to work after his
operation, management has been supportive with respect to his recovery
in that his work schedule was flexible to comply with his physician's
guidance and that the prior management team had accommodated him with
a parking pass after receiving a statement from his doctor that he was
permanently disabled.
Regarding his nonselection, complainant stated that the vacancy was
first announced in April 2003, and he was rated "best qualified"
in the merit category and "qualified" in the "all sources" category.
He stated further that his ratings made him the highest ranked applicant
on the certificate in each of the two categories of application for this
first job announcement. He stated that he discussed the decision to
re-announce the position with the FSPB Chief in September 2003, and the
FSPB Chief told him that though each of the three candidates interviewed
had various strengths, none of the applicants had "what he was looking
for."
Complainant stated that when the vacancy was re-announced in October 2003,
he reapplied and was again rated "best qualified" in the "merit" category
and "qualified" in the "all sources" category. He also stated that
he was interviewed and the FSPB Chief later told him that the position
would not be filled because management had decided to re-organize.
Complainant stated that in May 2004, he learned that Person A was
selected. He also stated that he and his union representative met with
the FSPB Chief and the FSPB Chief told them that the re-organization was
on hold and this circumstance gave him a wonderful opportunity to fill
the position immediately with a wonderfully talented and experienced
individual without the delay caused by the recruiting process.
Complainant stated that the FSPB Chief told complainant that had
complainant been selected for the vacancy, a replacement would have
been necessary. Complainant indicated that by making this statement,
the FSPB Chief had in essence established a de facto policy of zero
upward mobility for employees under his supervision.
Regarding his qualifications, complainant stated that he is a Certified
Public Accountant with a Bachelor of Science degree in Accounting,
a Masters degree in Business Administration, and was a graduate of
the Department of Defense's and the Department of the Army's capstone
financial management courses and the Army's Command and General Staff
College. He also stated that during the 13 years, he worked in various
capacities within his Section and was involved in everything in the
Section. He stated also that he has represented the Farm Service Agency
in various agency level meetings, represented the department in numerous
meetings and on project teams including a very successful assignment as
the Project Manager for a federal government-wide information technology
project under the auspices of the Federal Chiefs Information Officers
Council.
Complainant stated that he should have been selected because he was
better qualified based on actual successful work experience in the
Section and time spent in the Section head position. He also stated that
he had wider successful managerial experience and better professional
credentials. Complainant further stated that he had 28 and a half years
of leadership, command and management experience in both financial
and non-financial organizations worldwide prior to joining the agency.
He stated that he was a proven highly successful leader and manager,
having served and supervised at multiple levels of major organizations
with major responsibilities assigned and over 500 staff members under his
supervision. Complainant also stated that any limitations to successful
accomplishment of tasks during his employment could be traced to a lack
of clear complete guidance articulated by the manager assigning the task,
and the failure of the manager to establish a clear-cut management chain
and to adequately resource the assigned mission. He stated further that
despite such a limitation, he successfully performed virtually every job
within the Section, noting that as the Acting Section Head for over a
year, he led the successful completion of routine business activities
and a number of special projects and represented the division and the
agency to other federal departments and public entities.
Complainant also stated in his affidavit that during his meeting with
the FSPB Chief in September 2003, the FSPB Chief thanked him for his
past and current efforts to keep up with all the FCMSS work assigned
to him as a result of the staff shortage. He stated in his rebuttal
affidavit that the FSPB Chief and others have thanked and praised him
for his knowledge of the FCMSS programs and of the organizations with
which the FCMSS did business.
Regarding reprisal, complainant stated that he had participated in the
discrimination complaint process for a co-worker who had contended in his
(co-worker's) discrimination complaint that the FMD Director forced older
White men into undesirable positions and that his nonselection occurred
two to three months after his participation in the discrimination
complaint process of the co-worker. Regarding reprisal, he also
stated that he was viewed by most individuals with whom he interacted
on a professional basis as a strong, mature professional who was not
afraid to honestly and forthrightly state his personal and professional
opinions at any venue. He stated further that his not being selected
was in part reprisal for objecting to his treatment and using his best
judgment to establish his own work priorities in the absence of set
work priorities.
Complainant stated that he was not trained to be a "yes" man and did
not blindly follow orders toward a course of action which would create
problems for him and the organization when he could avoid the problems
by expressing them to his supervisor. He also stated that he did his
best to follow legal and ethical orders to the best of his ability once
a decision was made.
Regarding Person A, complainant stated that he believed that he is an
Accountant but that he did not know if Person A had any background
in systems. He also stated that to his knowledge, Person A had not
performed any systems work in the Division in the last twelve years.
Complainant stated that at the time of Person A's selection, he
was working as the Section Head of the Foreign Exports Risk Analysis
Section and had been there since August 2002. He also stated that he
had heard from several sources that Person A had had problems managing
the Section's staff and that he was transferred from the position at
the request of senior management of the Foreign Agricultural Service.
Complainant stated that Person A's prior position required few of the
specialized knowledge, skills, and abilities that the FCMSS Section Head
position required. He stated also that while Person A demonstrated a
willingness to learn during the time he was transferred to the vacant
position, he did not report for duty ready to run as the FMD Director and
the FSPB Chief had stated. Complainant stated that Person A had confided
and demonstrated to him that his knowledge, skills, and abilities were
not as stated by either the FMS Director or the FSPB Chief.
Complainant stated in a supplemental affidavit that Person A had no
qualifications for the position and had performed poorly since assuming
the Section position. He stated that Person A had poor work habits,
poor management skills, and relatively little accounting expertise.
Complainant also stated that the FSPB Chief had complained to him on
numerous occasions about Person A's poor performance and his poor work
habits and that the FSPB Chief and the FMD Director had berated Person
A in front of him for lack of productivity. He stated that Person A was
transferred from his position and he had serious performance problems in
his previous position and the problems were well known in the Division.
Complainant also stated that he had significant problems managing
staff and his problems led to union intervention because staff was
preparing to leave. He further stated that Person A badly mismanaged
an important Foreign Agriculture Service banking arrangement which led
higher management to demand that he be removed from the position he held.
In his rebuttal affidavit, complainant stated that there was never
a re-organization, that the FMD Director was aware of his disability
having to approve annually a list of FMD passing pass recipients which
contains a special section for disabled parking pass recipients and that
the FMD Director was intimately involved in and micromanaged the parking
pass assignments. He also noted that all of his job applications were
accompanied by copies of his service record and the required forms that
substantiated his claim for disabled veterans' preference. He also stated
that the present FMD Chief, who was his former supervisor, had told the
FMD Director about complainant's disability early in her tenure and that
at a meeting in early 2004, he told the FMD Director during an FMD staff
meeting that he had a deteriorating back condition.
Also in his rebuttal affidavit, complainant stated the FMD Director had
boasted about the number of discrimination complaints lodged against
her in previous position at another agency and in her current position.
He stated further that two "old white males" had won a settlement and
a promotion for violation of their equal employment opportunity rights,
a violation which the FMD Director had fostered, condoned, and abetted.
Complainant stated that although the FSPB Chief may have been technically
the selecting official, the FSPB Chief did not act independently and that
he would not risk contradicting the FMD Director or any other superior.
In his affidavit, he also stated that no management position was ever
filled without the FMD Director's express blessing and that the FSPB
Chief was a good soldier and did what he was told. Complainant stated
that the FMD Director and her predecessors reserved and exercised the
right to always make the final decision on filling management positions
and that if Human Resources records were made available, its records
would establish the FMD Director's biases and abuses.
Contained in the record is the affidavit of the FSPB Chief. He stated
that no selection was made from the best qualified list because they
were looking for the best and brightest and none of the candidates met
that requirement. The FSPB Chief also stated that there was also a
re-organization being discussed which would potentially have eliminated
the position by combining Sections. He stated that the re-organization
did not materialize over subsequent months. The FSPB Chief stated that
the decision not to fill the vacancy was technically his decision but
he had discussed his decision with the FMD Director. He stated that he
did not recommend complainant to the FMD Director because he knew that
he did not meet her standards. The FSPB Chief also stated that he would
not have hired complainant even without the FMD Director's input.
Concerning his selection of Person A, the FSPB Chief stated that he
was approached by the Chief of the International Accounting and Export
Programs Branch (IAEPB Chief) who indicated that she was looking for
a position for Person A. The FSPB Chief stated that Person A offered
some skill sets and knowledge related to foreign programs that his Branch
did not have. He also stated that Person A had no performance issues
that he was aware of and that Person A had a good working relationship
with the employees that worked for him. The FSPB Chief stated that he
knew Person A's background because he was on the interview panel for a
position for which Person A was selected previously.
In her affidavit, the FMD Director, a Senior Executive Service employee,
stated that the vacant position was announced twice but that a lot
of positions were posted twice. She further stated that the agency
had problems finding qualified candidates for the position. The FMD
Director stated that the first time that the position was announced,
the candidate pool was small and so it was re-announced to increase
the pool of applicants. She also stated that she did not generally get
involved in selections unless the selecting official wanted to discuss
the selection with her. The FMD Director further stated that in order
to avoid the appearance of favoritism, she maintained an arm's length
distance from selections. She stated that the selection was placed on
hold because of a re-organization. The FMD Director also stated that
the FSPB Chief was not happy with the candidates and made a decision in
consultation with her not to make a selection from the best qualified
list. She stated that moving Person A into the position was done at
management's discretion; that Person A was thought to be a good fit for
the Section Head of the FCMSS because of his background in the IAEPB;
and that moving Person A would best benefit the organization.
The record also contains the affidavit of the Chief of the Financing
and Disbursing Staff (FDS Chief) in the FMD. The FDS Chief stated
that he had occupied the position in dispute and was complainant's
immediate supervisor for approximately 10 years. He stated also that
complainant's qualifications were demonstrably and observably superior
to the qualifications of Person A. The FDS Chief stated further that
complainant was a good performer, a Certified Public Accountant, a hard
worker who performed well in his assigned work and who had frequently
acted as Section Head when he was absent. He stated that complainant had
acted as Section Head for a total of about two years and performed well
while acting in the position. The FDS Chief also stated that Person A
was not qualified for the Section Head position and that Person A was
removed from a previous Section Head position and transferred to the
Section Head position at issue to get him out of his previous position.
He stated that Person A had serious performance problems in his previous
job and his problems were well known in the Division. He also stated
that the IACPB Chief wanted to remove Person A from his prior position
because of his serious performance problems and she needed to have a
position to move him to.
The record contains the affidavit of the union president. He stated that
Person A had poor or non-existent qualifications for the position; that he
had been removed from a Section Head position previously; and that he was
transferred to the position in dispute to get him out of the position.
The Human Resources Specialist stated in her affidavit that agency
regulations permitted the transfer of staff from one position to another
without competing for the position and, also, that the selecting official
was not required to make a selection from the promotion certificate but
could select from any other appropriate source.
The record contains the performance evaluation of complainant for the
period October 1, 2002 to September 30, 2003. Complainant could be rated
either "results achieved" or "results not achieved." Complainant received
a "results achieved" rating. The record also contains a cash award
recommendation in the amount of $4,500 to complainant for extra effort
for the period May 1, 2002 to October 30, 2002. The award reflects that
it was recommended by the FSPB Chief.
We find that the agency did not discriminate against complainant when it
did not select him for the position and laterally transferred Person A
(White, male, 52, no known disability, no known prior EEO activity)
into the vacant position. For the sake of argument, we will assume
that the agency misrepresented its concern about performance issues
concerning complainant and was not forthright about its satisfaction
with and confidence in Person A's ability to perform in the disputed
position. Nonetheless, accepting as true that complainant was the top
ranking candidate, complainant has not linked the agency's purported
misrepresentation to prohibited discrimination. What seems more likely
than not from the evidence in the present case is that the agency
needed to place Person A somewhere else in the agency; that there was
a vacant position that Person A could fill; that the agency placed
Person A in it; and that the agency sought to justify its placement of
Person A by voicing concern over complainant's performance and voicing
confidence in Person A's ability to fill the vacancy. Such actions are
not discriminatory. A proffered reason cannot be proved to be a pretext
for discrimination "unless it is shown both that the reason was false,
and that discrimination was the real reason." Hicks, 509 U.S. at 517.
In addition, although complainant has a lengthy employment history with
the agency, the Commission has repeatedly held that mere length of service
does not necessarily make an individual more qualified for a position.
McGettigan v. Department of the Treasury, EEOC Appeal No. 01924372
(February 24, 1993); Ford v. Department of Health and Human Services,
EEOC Appeal No. 01913521 (December 19, 1991). Complainant has also
asserted that there was never a re-organization. The Commission notes
that because one explanation by an agency for a personnel action is
invalid, the invalidation does not mandate a finding that the act was
discriminatory; all the agency's proffered reasons must be examined.
See Sims v. Cleland, 813 F.2d 790, 793 (6th Cir. 1987); Pollan v. United
States Postal Service, EEOC Request No. 05891093 (January 19, 1990).
In addition, the Commission notes that here the agency was selecting
a manager. Case law is clear that an employer has more discretion in
selecting management level employees because the qualities needed to
successfully perform in such positions are not easily quantifiable.
See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
Claim 3
The AJ found that complainant has not shown how he was aggrieved by
the remark. The FMD Director denied making the statement.
The record contains the affidavit of the union representative who
accompanied complainant to a meeting with the FSPB Chief and the person
who complainant stated had heard the remark. The union representative
stated that he had not heard the FMD Director make the statement.
We agree that claim 3 fails to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). The Commission has consistently found that isolated
remarks or comments, unless severe, do not create a direct and personal
deprivation sufficient to render an individual aggrieved. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No.05940695
(February 9, 1995). Moreover, there is no preponderant evidence that
the remark was made or that the FMD Director who allegedly made the
remark made the selection.
Claim 4
Claim 4 actually consists of two claims: rotation into the acting
capacity and cancelled training.
In her decision, the AJ noted that complainant stated that the FMD
Director took him out of rotation for the position between the date when
he contacted an EEO investigator and September 2004, when he again began
serving regularly in an acting capacity. The AJ found that complainant
failed to provide any dates during the period when Person A was out
of the office that complainant was not allowed to serve in his absence
and/or that it was the FMD Director who took him out of the rotation; or
even if complainant were not rotated, it was for discriminatory reasons.
Regarding the rotation, complainant stated that from the time the
EEO Counselor contacted management about his claim in June 2004 until
September 2004, he was not appointed to act in that position and prior
to then, he was routinely acting Section Head and sometimes Acting
FSPB Chief. From May 4, 2004, until the time Person A arrived to
fill the position, complainant stated that he was acting as Section
Head on a regular basis when the Acting Section Chief was out of the
office and he was in the office. He stated that the agency did so
to deter him and others from engaging in EEO activity. As the AJ
correctly notes, other than complainant's general assertion that he
was not called upon to serve in the acting capacity, complainant has not
identified when he was not appointed or whether he was always available
to act. There is no evidence that Person A, who assumed the vacant
position in May 2004, and the FSPB Chief were away from the office and
complainant has not identified any time frames when they were absent.
Although complainant stated in his affidavit that the FSPB Chief could
have provided information as to dates, complainant himself could have
provided those dates since it is likely that he would have known when
he was not appointed to act in their absence.
Regarding the training, the AJ noted that complainant himself acknowledged
that Person A cancelled the training because the workload required
that complainant, the only grade level GS-13 in the Division, stay in
the office. In his affidavit, complainant stated that management was
worried about year-end closeout and the cancellation was workload driven.
Complainant stated further that the FMD Director had previously issued
guidance to minimize staff absence during October. He also stated that he
probably would haved cancelled the training himself, without any guidance
from the FMD Director, had he been in Person A's shoes. He stated
that Person A told him he could reschedule the cancelled training in
the future. Complainant has not shown that the agency discriminated
against him in the rotation claim or in denying him training.
Finally, construing the evidence in a light most favorable to complainant,
complainant has failed to show that the agency's actions were motivated
by discriminatory animus. At all times, the ultimate burden of persuasion
remains with complainant to demonstrate by a preponderance of the evidence
that the agency's reasons were not the real reasons and that the agency
acted on the basis of discriminatory animus. Complainant failed to
carry this burden.
The agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 7, 2009
__________________
Date
14
0120070269
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013