01992619
02-15-2001
Henry Simpson, Complainant, v. Ann Brown, Chairman Consumer Products Safety Commission Agency.
Henry Simpson v. Consumer Products Safety Commission
01A00117; 01992619
February 15, 2001
.
Henry Simpson,
Complainant,
v.
Ann Brown,
Chairman
Consumer Products Safety Commission
Agency.
Appeal No. 01A00117; 01992619
Agency No. EEO-99-003
DECISION
The Commission exercises its authority to consolidate the aforementioned
appeals. These appeals are accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged a violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Specifically,
complainant avers that he was discriminated against:
(1) on the basis of his race (African-American) when he was not selected
for the position of Product Safety Investigator/Compliance Officer,
GS-1801-12 in the agency's Atlanta satellite office; and
(2) on the basis of his race and sex (male) because the agency has failed
to hire or promote black males to the position of Compliance Officer in
the agency's Atlanta satellite office since 1973.
The record reveals that during the relevant time, complainant was employed
as a Senior Product Safety Investigator in the Atlanta Satellite Office.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on October 1,
1998. The agency accepted Issue 1 for investigation, but issued a
Final Agency Decision (FAD) concluding that Issue 2 failed to state
a claim. Complainant timely appealed this FAD and the Commission
docketed the appeal under EEOC Appeal No. 01992619. Thereafter, the
agency issued a FAD finding that complainant had not been subjected to
discrimination when he was not selected for the position of Product Safety
Investigator/Compliance Officer. Complainant timely appealed this FAD
and the Commission docketed the appeal under EEOC Appeal No. 01A00117.
We first find that the agency incorrectly framed complainant's complaint,
in that it ignored the pattern aspect of his claim. Complainant
asserts that he was discriminatorily non-selected for the position of
Product Safety Investigator/Compliance Officer in the agency's Atlanta
satellite office. Complainant further posits that his non-selection is
consistent with the agency's alleged policy of not hiring African-American
males to Compliance Officer positions in the Atlanta satellite office.
Consequently, the agency should not have treated complainant's averments
as two distinct claims. See Manalo v. Department of the Navy, EEOC
Requests Nos. 05970255 and 05970255 (June 1, 1998). Rather, complainant's
contention that the agency has failed to hire an African-American male
as a Compliance Officer in the Atlanta satellite office since 1973 is
more properly considered as relevant background evidence with respect
to his challenge of his specific non-selection.
In the absence of direct evidence of discrimination, we will apply
the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). The Commission agrees with the agency that complainant
established a prima facie case of race discrimination because complainant
applied and was qualified for the subject position and that the position
was filled by someone (selectee: Caucasian) who is not a member of his
protected class.
The record reveals that complainant is a licensed attorney with a law
degree and a Master's degree in Public Administration who has worked for
the agency in various capacities for over twenty-five years. Since 1989,
complainant has served as a Senior Product Safety Investigator, GS-12,
in the Atlanta satellite office. The selectee has a Bachelor's degree
and has been employed by the agency for over fourteen years. Since 1992,
the selectee has served as a Product Safety Investigator, GS-11, in the
Atlanta satellite office.
Complainant contended that he was more qualified for the position
than the selectee, noting that he had more agency experience, a more
extensive education and was already at the GS-12 level. In response,
the relevant agency officials stated that both were well qualified for
the position and performed well in the interviews. However, they noted
that the position neither required the law or Master's degrees possessed
by complainant nor his more lengthy agency experience. The relevant
officials averred that the determinative factors in making the selection
were the selectee's high level of productivity, enthusiasm, demonstrated
skills in negotiation and oral communications, willingness to travel
and to take on additional work, and a perception that the selectee could
better handle reporting to two separate supervisors.
Accordingly, the agency has proffered a legitimate nondiscriminatory
reason for its non-selection of complainant. The complainant is now
tasked with the burden of demonstrating 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. Texas
Department Of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981);
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
As evidence of pretext, complainant again pointed to his superior
academic degrees, more extensive agency experience and the fact that he
was already at the GS-12 level. He further noted that the Compliance
Officer position involved the interpretation of laws, questioned the
selectee's productivity, and asserted that the selectee's friendship
with the selecting officials was subjectively interpreted as enthusiasm.
In addition, as noted above complainant asserted that the agency has
never hired an African-American male to the position of Product Safety
Investigator/Compliance Officer in the agency's Atlanta satellite office.
However, employers have discretion to choose among qualified candidates,
provided that the decision is not based upon unlawful criteria. Burdine
at 259. While the several of the factors cited by the agency as utilized
in choosing among the qualified candidates (enthusiasm, willingness
to travel and to take on additional work, and a perception that the
selectee could better handle reporting to two separate supervisors)
are subjective, we note that the two selecting officials arrived at
their judgments individually. After a thorough review of the record,
we find that the complainant has failed to establish that the reasons
proffered by the agency are a pretext for discrimination. In finding
that complainant failed to establish discrimination, we also note that
the fact that a reviewing authority may think that an employer misjudged
the qualifications of the applicants does not in itself expose the agency
to Title VII liability. Burdine at 259.
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
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 15, 2001
Date