01a45130
11-07-2005
Gloria M. Brown, Complainant, v. Michael Chertoff, Secretary, U.S. Department of Homeland Security Agency.
Gloria M. Brown v. U.S. Department of Homeland Security
01A45130
November 7, 2005
.
Gloria M. Brown,
Complainant,
v.
Michael Chertoff,
Secretary,
U.S. Department of Homeland Security
Agency.
Appeal No. 01A45130
Agency No. I-03-C005
Hearing No. 310-2003-05417X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, an Accountant at the agency's Dallas
Finance Center facility, filed a formal EEO complaint on October 16,
2002, alleging that the agency discriminated against her on the bases
of race (African-American), age (D.O.B. 9/19/54), and in reprisal for
prior EEO activity (arising under Title VII) when on July 29, 2002,
she was notified that she was not selected for a one year assignment in
the Executive Leadership Program for mid-level employees at the USDA's
Leadership Development Academy.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of race
and age discrimination as well as retaliation because the selectee was
of a different race, was younger, and had never engaged in protected
activity. Moreover, the AJ found that complainant was qualified for
the training program. There were a total of three applicants to the
program, two African-Americans, including complainant, and one Caucasian.
The Caucasian applicant was the selectee.
Nevertheless, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant. The AJ
determined that the selectee had been chosen by consensus based on the
evaluations of a selection panel consisting of four top managers.
Although the panel did not interview the candidates, the panel
reviewed their applications and ranked them according to five criteria:
(1) education, (2) their interest in learning and self-improvement,
(3) communication abilities, (4) work accomplishments, and (5) the
ability to interact with others. The selectee scored 12.5 out of 15;
complainant scored an 8. Although complainant scored higher than the
selectee in regard to her education level, the selectee scored higher
than complainant in other categories. Particularly persuaded by the
evidence in the record and by the testimony of one of the selection panel
members,<1> the AJ determined that the selection process was legitimate
and nondiscriminatory. The evidence indicated that the selectee had
focused her application on her communication skills and on being a
team player. Complainant, on the other hand, had focused more on her
individual accomplishments. The AJ noted that it was reasonable and
legitimate for the panel to select a person who has proven she has good
group-oriented skills to participate in a leadership program.
In looking at complainant's pretext arguments, the AJ noted that although
complainant argued the selectee was pre-selected to the position
because of her personal relationship with the Responding Management
Official (RMO), the AJ did not find the selectee to be unqualified for
the position. A college degree was not a requirement for the program.
The AJ pointed to evidence that the RMO had not created the position for
the selectee, and there was nothing out of the ordinary in her rising
through the ranks so quickly. The selectee had worked at the agency for
over seven years and ordinarily employees were promoted from a GS-7 to
a GS-9 or from a GS-9 to a GS-11 within that time span. Complainant,
however, was already at a higher grade level, GS-11, than the selectee.
Evidence at the hearing showed that all the GS-12 positions at the agency
were supervisory. The fact that complainant had not been promoted to
a supervisory position in three and one-half years was not suspicious.
A promotion to a supervisory position is not a right achieved after years
of service. Thus, the AJ found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination/retaliation. The agency's final order
implemented the AJ's decision.
On appeal, complainant restates arguments she previously made.
Specifically, she states, among other things, that proof of pretext
is evident in the fact that she was never informed ahead of time that
five criteria would govern the selection process, or that a selection
panel made up of the RMO and his peers would evaluate her application.
She points out that the selection panel consisted of three Caucasians
and one Hispanic (who identified himself as Caucasian of Hispanic origin).
Complainant argues that because the office is over 80% African-American,
the panel should have been more representative of the workforce so
as to ensure fairness. Complainant also maintains that she is better
qualified than the selectee, particularly with regard to her education
and grade level, and that those facts are yet more evidence of pretext.
In response, the agency restates its position and requests that we affirm
its final order.
LEGAL ANALYSIS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Where, as here, complainant does not have direct evidence of
discrimination, a claim alleging disparate treatment is examined under
the three part test set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under this analysis, complainant initially must
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. See St Mary's Honor Cntr. v. Hicks, 509 U.S. 502, 507
(1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53
(1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Next,
in response, the agency must articulate a legitimate, nondiscriminatory
reason for the challenged actions. See Burdine, 450 U.S. at 253-54;
McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden
to demonstrate by a preponderance of the evidence that the agency's action
was based on prohibited considerations of discrimination, that is, its
articulated reason for its action was not its true reason but a sham
or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine,
450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
The analysis of retaliation claims follows the McDonnell Douglas model.
To establish a prima facie case of retaliation, complainant may show
that: (1) she engaged in protected activity; (2) the agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); Hochstadt v. Worcester Found. for Exper. Biol.,
Inc. 425 F. Supp. 318 (D. Mass. 1976), aff'd. 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to claims of reprisal); Coffman v. Dep't of
Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997). The nexus
may be shown by evidence that the adverse treatment followed the
protected activity within such a period of time and in such a manner
that a reprisal motive is inferred. See Clay v. Dep't of Treasury,
EEOC Appeal No. 01A35231 (Jan. 25, 2005).
The AJ determined and we shall also assume that a prima facie case was
properly established. Next, we turn to whether the agency articulated
a legitimate, non-discriminatory reason for not selecting complainant
to the position. The agency provided affidavit testimony from all four
members of the selection panel, all of whom were over forty, one Hispanic
and three Caucasians. At the hearing, complainant called to the stand
the RMO and another panel member. The panel member corroborated what
the other panelists unanimously stated in their affidavits, namely that
complainant, although a good candidate, did not convey leadership and
team building skills in her application as strongly as the selectee had
done. See Hearing Tr. at 134:1-8, 134:11-23, 135:8-13, 149:14-22, see
also Affidavits, Ex. 6 at 3; Ex. 7 at 2-3; Ex. 9 at 2-3. Complainant's
application mostly highlighted her individual accomplishments, and did not
show as well as the selectee's that she has the ability to lead others.
In arguing that these reasons are merely a pretext for discrimination,
complainant avers that she is better qualified than the selectee,
maintaining that she has a B.A. in Accounting, whereas the selectee has
only a GED. In her affidavit, complainant stated that �people under 40
are chosen for the leadership program or other areas of training and most
are not African-Americans.... African Americans have to have education,
but others do not to [be] promoted, and sometimes education does not
matter.� See Ex. 5 at 3. Even if we assume these statements to be true,
we find they are not enough to prove pretext. Pretext can be demonstrated
by �showing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the [Agency's] proffered legitimate
reasons for its action that a reasonable fact finder could rationally
find them unworthy of credence.� Morgan v. Hilti, Inc., 108 F3d 1319,
1323 (10th Cir. 1997) (quotations omitted). �Mere conjecture that
[the] employer's explanation is a pretext for intentional discrimination
is insufficient.� Branson v. Price River Coal Co., 853 F.2d 768, 772
(10th Cir. 1988); see also George v. United States Postal Serv., EEOC
Appeal No. 01A31214 (July 28, 2003).
It is true that in a non-selection case, complainant may establish
pretext with a showing that her qualifications were plainly superior
to those of the selectee. See Wasser v. Dep't of Labor, EEOC Request
No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). However, we have recognized that an employer has
discretion to choose among equally qualified candidates. See Canham
v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981), cert. denied,
456 U.S. 977 (1982). Moreover, an employer has even greater discretion
when filling specialized positions. See Wrenn v. Gould, 808 F.2d 493, 502
(6th Cir. 1987). Of course, we are aware that the use of subjectivity
in making a job placement decision may offer a convenient pretext for
unlawful discrimination. Nevertheless, we acknowledge that choosing an
appropriate candidate for a specialized position necessarily involves
making a decision based on subjective criteria. Thus, we do not find
that the use of such criteria is, in and of itself, an indicator of
discriminatory motivation as complainant would have us find. See Podale
v. Dep't of Health & Human Servs., EEOC Request No. 05960344 (Oct. 16,
1998). Wilson v. U.S. Postal Serv., EEOC Request No. 05921062 (Aug. 12,
1993). Neither do we view the fact that complainant was not informed
of the selection criteria before applying as cause for suspicion.
The panel members all testified that no applicant was made aware of the
criteria ahead of time. Therefore, no one had an unfair advantage over
the others.
Instead, we find that complainant has failed to show that the agency's
reasons are a pretext for discrimination. The panel unanimously
found that complainant's application was not as impressive as the
selectee's when evaluated through the devised criteria. See Hearing
Tr. at 135:8-13. The panel wanted to select a person who had proven
herself to have leadership skills, someone who has shown she can
work well and communicate well with others. See id. After all, the
position at issue would focus on developing further leadership skills.
Complainant simply did not prove that she possessed these skills as well
as the selectee. We find that while some of complainant's qualifications
may be stronger than the selectee's, particularly her education level,
we find that the substantial evidence in the record indicates that
the selectee possessed stronger interpersonal skills than complainant.
Absent evidence of distinctly superior qualifications, we concur with
the AJ that both complainant and the selectee were well qualified for the
position at issue, but that the selectee simply out-shined complainant.
We further find that because the vacancy was for a specialized position,
namely a leadership training position, the agency could properly use
subjective criteria in the selection process. There is no evidence to
suggest that this assessment was used as a pretext for discrimination.
Lastly, we note that we have repeatedly recognized 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. See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 259 (1981). We simply do not have the authority nor
the capacity to stand as the super-personnel department for the VA.
Of course, personnel decisions which are idiosyncratic or suspect
are subjected to heightened scrutiny. See Andre v. Dep't of Defense,
EEOC Appeal No. 01994562 (Feb. 22, 2002). Deviations from standard
procedures without explanation or justification are sufficient to support
an inference of pretext. See Hovey v. Dep't of Hous. & Urban Dev., EEOC
Appeal No. 01973965, (Aug. 31, 2000). However, we find no evidence of
an idiosyncratic decision in not selecting complainant.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence. We conclude
that complainant failed to present evidence that any of the agency's
actions were in retaliation for her prior EEO activity or were motivated
by discriminatory animus toward complainant's race or age. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
November 7, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 The AJ heard testimony from all but one of
complainant's requested witnesses, the other non-selectee to the position.
Complainant called only two selection panel members as witnesses �
D.Y. and the RMO. She did not call the other two panel members.