01983417
06-27-2001
John W. Peiper III, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
John W. Peiper III v. Department of the Navy
01983417
June 27, 2001
.
John W. Peiper III,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01983417
Agency No. DON-96-62813-007
Hearing No. 370-97-X2752
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he
was discriminated against on the bases of race (Hawaiian/Chinese) and
reprisal (prior Title VII activity) when, on May 23, 1996, he was not
selected for the position of Supervisory Police Officer (Instructor).
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Police Lieutenant at the agency's
Naval Station Security Department in Pearl Harbor, Hawaii, filed a formal
EEO complaint with the agency on August 12, 1996, alleging that the
agency discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of reprisal discrimination. Specifically, the AJ found that complainant
failed to demonstrate that he had engaged in protected EEO activity
prior to the date of the alleged discrimination. The AJ concluded that
complainant established a prima facie case of race discrimination because
he was not selected for a position for which he was qualified, in favor
of the only other applicant (Caucasian). The AJ further concluded,
however, that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ found that the selectee was better
qualified for the position and that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination. In reaching this conclusion, the AJ
found that, while complainant was himself an impressive candidate, �in
light of [the selectee's] stellar [credentials] I cannot conclude that
complainant has shown that his qualifications are so plainly superior
[to those of the selectee] as to require a finding of pretext.� The
agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
After a careful review of the record, we find that the AJ correctly
found that there was no genuine issue of material fact in this case.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A complainant must first 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 reason was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the complainant to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that complainant established a prima facie case of race
discrimination, but that the agency, in claiming that the selectee was
more qualified, articulated a legitimate nondiscriminatory reason
for their action. The burden therefore shifts to the complainant
to prove, by a preponderance of the evidence, that such legitimate
reason is a pretext for discrimination. See Burdine, 450 U.S. at 256.
The Commission notes that in nonselection cases, pretext may be found
where the complainant's qualifications are demonstrably superior to
the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Because we find that complainant has not demonstrated that the agency's
articulated legitimate nondiscriminatory reason for not selecting
complainant is pretextual, we decline to address whether complainant
established a prima facie case of reprisal. The only evidence relied
on by complainant to support a finding of pretext consists of the job
applications of the selectee and himself. Following a review of the two
applications, we find that, even assuming the facts in the light most
favorable to complainant, he has failed to show that his qualifications
are demonstrably superior to complainant's. See Bauer, 647 F.2d at 1048.
Complainant has advanced various arguments to support a finding
of pretext. Complainant argues that the selectee did not meet the
minimum requirements for the position which, according to complainant,
required ten years of law enforcement experience as a police officer or
its equivalent. As the AJ correctly pointed out, however, complainant
is confusing the qualification requirements for the job with the quality
ranking factors (QRF). The former were listed on the position description
and clearly stated �One year of specialized experience equivalent to
the GS-7 level.� We find that these qualifications were met by the
selectee's one-and-a-half year's experience as a Company Commander with
the Military Police. The ten years of law enforcement experience, on
the other hand, were part of the QRF which were mere pointers to aid in
the fleshing out of the knowledge, skills, and abilities of the best
candidates who had already met the basic qualification requirements.
Given that the QRF allowed for experience as a police officer �or
its equivalent� we find that it could not reasonably be argued that
the selectee's application, reflecting two years of participation in a
Sheriff's Department �ride-along� program in high school, �a bachelor's
degree in criminal justice, and more than five years of military police
supervisory and training experience, does not demonstrate such knowledge,
skills, and experience,�
Complainant further argues that, contrary to the statement of the
selecting official (RMO: Caucasian), the selectee does not have �over
twelve years combined experience and training in the law enforcement
field.� While a review of the selectee's resume revealed that this
was indeed an overstatement by RMO, given the selectee's impressive
credentials, the statement does not demonstrate that the agency's reasons
for selecting the selectee are a pretext for discrimination.
Complainant also argued that the record was devoid of proof that the
selectee's military efficiency reports were equivalent to or exceeded
the performance appraisal/awards rating of Exceeds Fully Successful.
We find that selectee's application showing that he had been continually
rated in the top one percent of his peers and had received eleven awards
for his work performance suggested that his work evaluations exceeded
�Fully Successful.�
In addition, complainant argued that, unlike the selectee, he was not
offered an interview. We note that the agency's procedures allowed
for selecting officials to use their discretion in interviewing �all,
some, or none� of the candidates for a position. Furthermore the agency
contended that RMO was well familiar with complainant's abilities and
that an interview was therefore unnecessary. Finally, complainant
argued that once the agency learned that the selectee would leave the
position after three months, complainant, as the alternate candidate,
should have been offered the position without it being re-advertised
by the agency. We note, however, that according to agency procedure,
the alternate candidate is placed into a position only if the first
candidate declines the offer, not if the first candidate accepts but
leaves shortly thereafter.
Following a careful review of the evidence, the Commission agrees with the
AJ's finding that the complainant has failed to show that the agency's
legitimate reasons are a pretext for discrimination. See Burdine,
450 U.S. at 256. We note that the Commission can not second guess
an employer's business decisions but can focus only on an employer's
motivation for such decisions. Id. Furthermore, the Commission
finds that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's race or
were in retaliation for complainant's prior EEO activity. 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 (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
June 27, 2001
__________________
Date