Eric A. Hurst, Complainant, F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionApr 19, 2000
01985908 (E.E.O.C. Apr. 19, 2000)

01985908

04-19-2000

Eric A. Hurst, Complainant, F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Eric A. Hurst v. Department of the Air Force

01985908

April 19, 2000

Eric A. Hurst, )

Complainant, )

) Appeal No. 01985908

) Agency No. SF1L97007

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

INTRODUCTION

On July 30, 1998, Eric A. Hurst (the complainant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) dated July 6, 1998, concerning his

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency properly determined that

complainant had failed to prove that the agency discriminated against

him based on race when he was not selected for a position he desired.

BACKGROUND

Complainant was employed by the agency as a Computer Operator, GS-332-06,

at Scott Air Force Base in Illinois. He was placed on a referral list for

the position of Transportation Assistant, GS-2102-06/07 (the Position),

and was referred to the Selection Official (SO) for consideration along

with fifteen other candidates. The SO had an evaluation panel of two

people (the Panel) interview all of the candidates in order to rate

the candidates for the Position. The Panel rated nine other candidates

higher than the complainant. The SO chose the top five candidates (the

Selectees); of those selected, three were not in complainant's protected

category and two were members of his protected class. Complainant was

informed that he was not selected in October 1996.

Complainant initiated EEO Counseling on November 6, 1996. He filed

a formal complaint on January 2, 1997, alleging discrimination on the

basis of race (Black) when, on October 18, 1996, he was not selected

for the Position. 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

his right to request an administrative hearing. After complainant failed

to request a hearing, the agency issued its FAD on July 6, 1998.

In its FAD, the agency found that the selecting officials had

articulated a legitimate, nondiscriminatory reason for not selecting

the complainant, namely that complainant had not been rated among the

top five candidate for the Position by the Panel. The FAD further

stated that complainant had failed to establish that the legitimate,

nondiscriminatory reason articulated by the agency for its decision

was a pretext for discrimination. This appeal followed.

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, 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 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); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In response to complainant's claim of discrimination, the agency presented

evidence that complainant was not selected because the evaluation panel

and the SO found the Selectees to be better qualified for the Position

due to their higher interview scores. A review of the record shows

that complainant was not rated in the top five of those interviewed

for the Position, and his interview scores placed him tenth among the

sixteen candidates. The score sheets from each panel member regarding

the selectees and the complainant show that the interviewers judged the

selectees to have better answers to their questions, and to demonstrate

more relevant and complete knowledge about the topics being questioned,

than the complainant. 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.

In a non-selection case, pretext may be demonstrated in a number of ways,

including a showing that a complainant's qualifications are observably

superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048

(10th Cir. 1981). We note, however, that an employer has the discretion

to choose among equally qualified candidates. Canham v. Oberlin College,

666 F.2d 1057, 1061 (6th Cir. 1981). We find that complainant has failed

to show that his qualifications were superior to those of the selectees.

Therefore, the agency's determination that complainant failed to establish

that he was discriminated against was correct.

Accordingly, the decision of the agency was proper and is AFFIRMED.

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:

April 19, 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 of mailing. I certify that

the 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.