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.