01993735
01-15-2002
James F. McGourty, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
James F. McGourty v. Department of the Interior
01993735
01-15-02
.
James F. McGourty,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01993735
Agency No. FNP-97-074
Hearing No. 160-99-8059X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning his formal 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 agency's final decision is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven by
preponderant evidence that he was discriminated against on the bases of
national origin (Irish), religion (Catholic), and age (66 at the time
of the alleged discriminatory event) when he was not selected for the
position of Roads and Grounds Supervisor.
BACKGROUND
The evidence of record reveals that in October 1996, the agency posted a
vacancy announcement for the position of Roads and Grounds Supervisor in
the Gateway National Recreation Area. Complainant, employed by the agency
as a Maintenance Worker at the time of the alleged discriminatory events,
applied and was found qualified for the vacant position. Notwithstanding
complainant's qualifications, he was not selected for the position.
Believing he was the victim of discrimination, he contacted an EEO
counselor regarding the matter. When the matter was not resolved at
the informal counseling stage, complainant filed a formal complaint
in which he alleged what has been identified as the issue presented.
The agency accepted the complaint for investigation. At the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). Consequently, the case was forwarded to the
appropriate EEOC District Office and assigned to an AJ. After examining
the evidentiary record, the AJ determined that there were no material
facts in dispute, and therefore issued a decision without a hearing
finding no discrimination. The agency's final decision adopted the AJ's
findings. Complainant appealed. On appeal, complainant contends that
the AJ should not have issued a decision without a hearing because the
agency's stated reason for not selecting complainant was not consistent
with information provided in the evidentiary record.
ANALYSIS AND FINDINGS
Decision Without a Hearing
The United States 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 does
not sit as a fact finder. Id. 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. A disputed 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, summary judgment is not appropriate.
An AJ may only properly consider summary judgment after there has been
adequate opportunity for development of the record. After examining
the testimonies of the various witnesses and other evidence provided by
the parties, we find that the AJ's decision to issue a ruling without
a hearing was appropriate.
Non-Selection
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in Title VII and ADEA cases
alleging discrimination is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973); Loeb v. Textron, 600
F.2d 1003 (1st Cir. 1979). First, complainant 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether s/he has
demonstrated by a preponderance of the evidence that the agency's
reasons for its actions merely were a pretext for discrimination. Id.;
see also United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 714-717 (1983). Here, we find that the agency has stated
legitimate, nondiscriminatory reasons for its actions. Specifically, the
agency stated that the selectee was chosen for the position because his
supervisory experience and skills were stronger than the other qualified
candidates. The agency noted the selectee had served previously as the
Acting Roads and Ground Supervisor, while complainant has served as a
Maintenance Worker since 1974. The agency also noted that the selectee
scored higher than complainant in the selection criteria, which included
the ability to lead or supervise, operation of engineering equipment,
knowledge of preventive maintenance, ability to interpret instructions,
specifications, and blueprints and work practices.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
On appeal, complainant contends that one of the agency's stated reason
(i.e., that the selectee had a higher rating score than complainant)
is disingenuous, and thus a pretext for discrimination, because the
recommending official (RO) recommended someone for the position with
the same rating score as complainant, the affidavits of the selecting
official (SO) and the approving official (AO) suggest that the rating
scores of eligible candidates did not play a factor in the selection
process, and the SO and the AO stated that they did not conduct a thorough
review of the applications. Complainant further contends that the RO's
statement that he did not have to conduct interviews because he knew
each of the candidates is also a pretext for discrimination because
the RO never supervised him, and therefore had no way of assessing his
work performance. Finally, complainant contends that the selectee's
subsequent removal due to poor performance is evidence that complainant
was more qualified for the position.
We note that the agency stated two reasons for complainant's
non-selection; (1) the selectee had stronger supervisory experience;
and (2) the selectee rated higher in the criteria utilized to fill the
position. Complainant presented no evidence to support his assertion that
the agency did not rely on the candidates' ratings during the selections
process. While the evidence in the record clearly shows that the RO,
the SO, and the AO relied mainly on the supervisory experience of the
candidates, there is no evidence that the candidates' ratings played no
role in the process.
Complainant also argues that the RO's contention that interviews did not
have to be conducted in order to fill the position because he knew all
the candidates personally lacks merit in that the RO never supervised
complainant, and therefore was never in a position to review or evaluate
complainant's work performance. This argument does nothing to prove
that the RO lacked knowledge of how complainant might perform in the
job if he had been selected, nor does it prove that the RO did not know
complainant personally.
Complainant goes on to argue that the selectee's subsequent removal
for poor performance is evidence that complainant was more qualified
than the selectee for the position. We disagree. First, complainant
presented no evidence beyond a bare assertion that the selectee was
actually removed for poor performance. But second, even if such evidence
had been presented, we note that agencies are not equipped to determine
with exact precision how a person might actually perform once selected
for a position, particularly if that person is qualified on paper,
as the selectee was.
Finally, complainant argues that he was more qualified than the selectee
for the position. To support this argument, complainant must show that
his qualifications are plainly superior to those of the selectee. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Having considered
the evidence of record, the Commission finds that complainant has not
established that his qualifications for the position were "plainly
superior" to those of the selectee's. Based on the foregoing, the
Commission finds the various arguments put forth by complainant fails
to show that the agency's stated reasons were pretext to mask unlawful
discrimination.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response thereto, and arguments and evidence not
specifically addressed in this decision, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. As such, the Commission
discerns no basis to disturb that decision, and hereby AFFIRMS the
agency's adoption thereof.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__01-15-02________________
Date