01976625
09-07-1999
James Thomas, Jr., Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency,
James Thomas, Jr. v. Department of the Army
01976625
September 7, 1999
James Thomas, Jr., )
Appellant, )
) Appeal No. 01976625
v. ) Agency No. 9605G0090
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency, )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted
by the Commission in accordance with the provisions of EEOC Order
No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
appellant based on race (African American) when he was not selected for
the position of Supervisor Realty Specialist, GS-1170-12, in November
1995.
BACKGROUND
Appellant filed a formal complaint in April 1996 in which he raised the
issue identified above. Following an investigation, which included
an agency investigative hearing, appellant did not request an EEO
administrative hearing. The agency thereafter issued a final decision
in July 1997 finding no discrimination. It is from this decision that
appellant now appeals.
During the period in question, appellant was employed as a Realty
Specialist in the agency's Savannah District Real Estate Division
(the Division). In November 1995, appellant applied for the temporary
position of Supervisor Realty Specialist, GS-1170-12, which was located
in the Division. Appellant was thereafter not selected in favor of a
co-worker (the Selectee - White), who was also a Realty Specialist.
The Position's selecting official (SO) was the Chief, Regional Management
Branch. According to the SO, although appellant had the background for
the Position, she had reservations about selecting him based on past
problems she had with him in the areas of meeting deadlines, managing
funds, and preparing documents. The SO also testified that she had
concerns about appellant's "ability to use his technical knowledge,
especially when it came to writing the formal technical planning
documents." The SO testified that, because of these problems, she
believed the Selectee would be better able to handle the duties of the
Position.
On appeal, appellant's primary contentions are that he was better
qualified than the Selectee and that African Americans are under
represented in management positions within the Division. Regarding the
first contention, the record reveals that appellant has more education
than the Selectee and that both individuals have approximately the same
amount of experience as Realty Specialists. It also reveals, however,
that the Selectee received a better supervisory rating for the Position
and that she had received a higher rating than appellant on her most
recent performance appraisal. With regard to the second contention,
appellant appears to argue that the alleged statistical imbalance is the
result of a combination of disparate treatment and disparate impact.
Specifically, appellant is alleging that, as a result of intentional
discrimination on the part of agency officials, there is a statistical
imbalance of African Americans in management positions.<0>
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Initially, we find appellant has established a prima facie case of race
discrimination. In so finding, we note that appellant was not selected
for the Position in favor of the Selectee, a nonmember of his racial
group. See Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981).
Because appellant has established a prima facie case, the agency has
the burden of articulating a legitimate, nondiscriminatory reason for
the challenged action. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981). We find that the agency has met this burden.
Specifically, the SO testified that, based primarily on past problems
she experienced with appellant, she felt that the Selectee was a better
choice for the Position.
At this point, appellant bears the burden of establishing that the
agency's articulated reason is a mere pretext for discrimination.
Appellant can do this either directly, by showing that a discrimi-natory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
Id. at 519 (emphasis in original).
In a non-selection case, pretext may be demonstrated where appellant's
qualifications are shown to be plainly superior to those of the
selectee(s). Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
An employer, however, has the discretion to choose among equally
qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061
(6th Cir. 1981). Additionally, an employer has greater discretion when
choosing management level employees. Wrenn v. Gould, 808 F.2d 493, 502
(6th Cir. 1987).
In the present case, the Commission has considered appellant's
various contentions and finds them insufficient to establish pretext.
With regard to those contentions pertaining to qualifications, it is
clear that appellant was qualified for the Position. At the same time,
however, the Selectee was also qualified. Although appellant may have
been superior to the Selectee in terms of education, the Selectee was
deemed to be performing at a higher level than appellant at the time of
the selection. Therefore, we find appellant has not demonstrated that
his qualifications for the Position were plainly superior to those of the
Selectee. Furthermore, the Commission finds that the statistical evidence
cited by appellant, by itself, is not sufficient to establish pretext.
Accordingly, the Commission finds appellant has not established that
he was discriminated against based on race when he was not selected for
the Position.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against him as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
September 7, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
01 The Commission finds that this contention is properly addressed under
a disparate treatment theory and, in so finding, notes that statistical
evidence is relevant under this theory. Conversely, although appellant
uses the term "disparate impact," we find this theory is not relevant
insofar as he is alleging that the imbalance is the result of intentional
discrimination rather than the effect of a neutral employment policy or
practice.