0120091499
07-23-2009
John M. Tate, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
John M. Tate,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091499
Hearing No. 430200800316X
Agency No. ARBRAGG07AUG02970
DECISION
On February 13, 2009, complainant filed an appeal from the agency's
January 8, 2009 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 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(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Logistics Management Specialist, GS-0346-13, at the agency's
Army Sustainment Command (ASC), Army Field Support Brigade (AFSB) in
Fort Bragg, North Carolina.
On January 11, 2007, the agency advertised an open position for
a Supervisory Logistics Management Specialist, GS-0346-14, under
Vacancy Announcement No. SCDN07773040. On April 9, 2007, the Civilian
Personnel Operating Center (CPOC) in Redstone, Alabama generated a
web-based referral list for the position. The list contained the names
of complainant and 31 other candidates who CPOC deemed qualified for
the position. The Selecting Official (SO) developed a selection packet
with rating and ranking evaluation criteria and interview questions, in
accordance with Policy Letter #571 for the ASC, and selected individuals
to form a panel for the process. The Policy Letter stated that the
selection panel members were to be at or above the grade of the position
to be filled and should include "at least one minority and/or female
member, and at least one subject matter expert."
On May 28, 2007, SO selected a panel consisting of one male subject
matter expert, another male minority member, and a female member.
The selection panel rated and ranked the top three candidates and then
scheduled interviews. Complainant was originally the fourth-ranked
candidate, but was selected for an interview when the third-ranked
candidate declined an interview. After the resume and interview scores
were tallied, the panel chose the candidate with the highest score.
The selectee (SE) ranked first with a score of 600 points, followed
by complainant with 560 points, and another candidate with 540 points.
SO later reviewed the selection packets and concurred with the selection.
On August 2, 2007, complainant became aware that he was not selected
for the position. Complainant alleged that his age and disability were
improperly used in making the selection, and that the panel overrated SE's
credentials specifically for the purpose of selecting him. Complainant
asserted that SE did not properly date or cite his resume for his past
experiences, as required. Complainant stated that he should have been
selected for the position because he had more training and awards than SE,
and his performance ratings were higher than SE's. Complainant alleged
that SO was aware of his age and disability, and that these were factors
in his non-selection.
Complainant further alleged that the panel members were not certified
in the acquisition field and lacked the experience necessary to make
the selection for this position. Complainant noted that SO should
have recognized inconsistencies in SE's credentials and should not have
followed the panel's recommendation.
In contrast, SO countered that he was aware of complainant's age
and disability, but they were not a factor in the selection process.
SO further noted that all of the candidates had exceptional resumes and
experience, and their scores were very close.
On September 20, 2007, complainant filed an EEO complaint alleging
that he was discriminated against on the bases of disability (Type
II Diabetes) and age (58) when, on August 2, 2007, he learned that he
was not selected for the position of Supervisory Logistics Management
Specialist, GS-0346-14, for which he applied under Vacancy Announcement
No. SCDN07773040.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on October 7, 2008, and
issued a decision on December 29, 2008, in favor of the agency.
In her decision, the AJ found that complainant failed to establish
his prima facie cases of disability and age discrimination. The AJ
found that complainant was not a qualified individual with a disability
as he is not substantially limited any major life activities. The AJ
further noted that SE was within the same protected group as complainant
because there was only a three-year age difference between them. The AJ
stated that this minor difference made SE "insignificantly younger" than
complainant, and because both candidates were eligible for retirement,
no inference of age discrimination could be found. Further, the AJ found
that although certainly qualified for the position, complainant failed
to demonstrate how his qualifications were superior to those of SE.
On January 8, 2009, the agency issued a final order fully implementing
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). Here we find no basis in the record to disturb the AJ's credibility
findings.
Complainant alleges that he was discriminated against on the bases
of disability and age when he was not selected for the position of
Supervisory Logistics Management Specialist, GS-0346-14. 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 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
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. See 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.
See 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. See 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). Here, we will assume
without so finding that complainant established his prima facie cases
of disability and age discrimination.
The agency articulated legitimate, non-discriminatory reasons for its
actions. The agency stated that SO selected a diverse panel of male,
female, and minority members who were qualified for the selection process.
The agency stated that SE was better-qualified for the position because
he had military, civilian, and leadership experience, as well as an
advanced education in liberal arts, course work, and numerous awards.
Complainant must now establish, by a preponderance of the evidence, that
the agency's articulated legitimate, non-discriminatory reasons were
pretext for discrimination. Complainant asserted that he should have
been selected for the position because he had more training, awards and
better performance ratings than SE. Further, complainant asserts that
SE's resume was not properly cited and dated, and the selection panel
was not qualified to make the selection. After a review of the record,
we find that, while complainant's resume may have been more structurally
developed, complainant failed to offer evidence that would establish that
his qualifications were observably superior to those of SE. The record
also reflects that the members of the selection panel were qualified to
recommend a candidate for the position. Complainant failed to offer any
evidence that would establish, by a preponderance of the evidence, that
the agency's proffered legitimate, non-discriminatory reasons were pretext
for discrimination. Therefore, we AFFIRM the agency's final order.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order, because a preponderance of the evidence of record does not
establish that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 23, 2009
Date
1 We note that Policy Letter #57 is the basic form of guidance for the
ASC which provides the rules and regulations the agency is to abide by
regarding the selection process.
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0120091499
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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