0120084003
06-18-2010
Kathleen J. Nader, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Kathleen J. Nader,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120084003
Hearing No. 410200800203X
Agency No. R04PBS20080001
DECISION
On September 23, 2008, Complainant filed an Appeal from the Agency's
September 18, 2008 final order concerning her equal employment opportunity
(EEO) complaint alleging 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 deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge (AJ) was correct to find that
Complainant was not subjected to unlawful discrimination based on her
sex and age.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant
worked as a Building Management Specialist (GS-12) at the Agency's Public
Buildings Service Center in Tampa, Florida (Tampa Service Center).
In July 2007, the Agency announced a vacant Building Manager position
(GS-13) at the Tampa Service Center. This vacant position required the
selected candidate to, among other things, manage federal courthouse and
office buildings, negotiate lease provisions, and supervise maintenance
staff. Complainant was among 18 candidates that applied for the
position. After the candidates were interviewed by the first review
panel, a rating sheet was developed with all the scores. The rating
sheets prepared by the first review panel contained ratings that were
prepared by all three panel members. These sheets were forwarded to
the Selecting Official (SO). The SO convened a second interview panel
consisting of himself and two other employees. All three members of
the second interview panel worked at the Tampa Service Center with
Complainant. The SO was the Director of the Tampa Service Center and
the immediate supervisor of the other two panel members and Complainant.
On September 17, 2007, the SO scheduled interviews with the top four
candidates as rated by the first panel. The SO reviewed the resumes of
the original 18 applicants, and added the Selectee and another candidate
to the interview list for the second panel. The SO added the Selectee
even though he was not among the top four individuals recommended by the
first panel. Panel members were under the assumption that only the top
four rated candidates would be considered by the second panel. Complainant
was rated fourth, while the Selectee was rated seventh. The Selectee was
selected by the SO despite the fact that he was the youngest candidate at
31 years of age. Certain members on the first and second panels disagreed
with the SO's selection. Panel members felt that the SO preselected
the selectee because he had previously worked with him during Hurricane
Katrina recovery efforts.
On November 19, 2007, Complainant filed an EEO complaint alleging that
she was discriminated against on the bases of sex (female) and age (58)
when she was not selected for the Building Management Specialist position
(GS-13) under vacancy announcement No. 0740697.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an AJ. Complainant timely requested a hearing and the
AJ held a hearing on July 30, 2008 and issued a decision on August 14,
2008. The Agency subsequently issued a final order adopting the AJ's
finding that Complainant failed to prove that she was subjected to
discrimination as alleged.
Specifically, the AJ found that the Agency articulated legitimate
nondiscriminatory reasons for its actions. Namely, the AJ found that
the Selectee was selected because he had more experience pertaining to
property management. The AJ also found no evidence that Complainant was
more qualified than the Selectee. In this regard, the AJ found that
the Selectee was selected because the agency had a poor relationship
with the courts, and the Selectee had experience managing courthouses
in Mississippi and South Carolina. The AJ noted that the selected
candidate was going to have management responsibility and contact with
federal courts. The AJ noted that the Selectee's application indicated
that he had managed: 1) 1.3 million square feet of office space; (2) a
$1.2 million alteration budget of seven buildings; and (3) over 230,000
square feet of courthouse and federal buildings.
Furthermore, the AJ noted that the Selectee was already at the GS-13
level; whereas, Complainant was still at the GS-12 level. The AJ also
noted that based on the SO's and another panel member's hearing testimony,
the Selectee had performed better during the interview because he gave
examples of leadership and team building. Therefore, the AJ determined
that the Agency had sufficient justification for its selection, and that
Complainant was not subjected to unlawful discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her qualifications were plainly
superior to that of the Selectee. In this regard, Complainant contends
that (1) she had double the amount of relevant experience than the
Selectee; (2) was rated much higher by the initial interview panel; and
(3) was already assigned to, and had been working for some time, in the
geographic area which the vacant position was responsible. Complainant
also alleges that the SO said to her and another Female Employee (FE) on
one occasion that "you girls belong in secretarial positions."1 Further,
Complainant contends that the SO preselected the Selectee. Complainant
also noted that the SO's comparison of her qualifications with the
Selectee's was highly subjective.
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).
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, she 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 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).
Assuming arguendo, that Complainant has established a prima facie
case of sex and age discrimination, we concur with the AJ that the
Agency articulated legitimate, non-discriminatory reasons for its
actions. Namely, that the selectee was selected because the Agency felt
he was the most qualified in property management. In this regard, the
Agency indicated that the Selectee was serving as a GS-13 Supervisory
Property Manager, while Complainant had been a Building Management
Specialist at the GS-12 level. As a result, the Agency felt that the
Selectee had management experience that Complainant lacked. The Agency
also noted that the Selectee had, at one time, worked on responsibilities
pertaining to the West Wing of the White House, which required a top
level security clearance. The Agency noted that even though a security
clearance was not a requirement for the position, it demonstrated that
the Selectee had established great responsibility in the capacity of his
previous positions. The Agency further indicated that the Selectee, among
other reasons, was also chosen because the Agency needed improvement in
its relationship with federal courts, and the Selectee had experience
managing courthouses in Mississippi and South Carolina.
Because the Agency proffered legitimate, nondiscriminatory reasons
for Complainant's nonselection, Complainant had the burden of
establishing that the agency's stated reasons were merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). In nonselection cases, a complainant
can establish pretext by showing that his qualifications are "plainly
superior" to those of the selectee. Wasser v. Department of Labor, EEOC
Request No. 05940058 (November 2, 1995); We find that there is substantial
evidence in the record to support the AJ's determination that Complainant
failed to show that the Agency's legitimate reasons for her nonselection
were a pretext for discrimination. Complainant did not establish that
her qualifications were plainly superior to those of the Selectee,
nor did Complainant otherwise establish that the selection process was
motivated by discriminatory animus. When choosing among highly qualified
candidates for a position, agencies have broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Burdine,
450 U.S. at 248. 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997).
We note that on appeal, Complainant alleges that she was more qualified
because she had already been working in the same geographic area and
had double the amount of experience. However, we note that the Agency
selected the Selectee because the selectee's qualifications were more
tailored to the position than Complainant's qualifications. Also, even
though Complainant had been working for the agency longer, greater years
of service do not necessarily make one candidate more qualified for a
position than another. See Ropelewski v. United States Postal Service,
EEOC Request No. 05940313 (Nov. 23, 1994).
With regard to Complainant's claim on appeal that the Selectee was
preselected, we note that even if preselection occurred, it would
not be unlawful unless Complainant can show that the preselection
was driven by discriminatory animus. Nickens v. NASA, EEOC Request
No. 05950329 (February 23, 1996). Preselection, per se, does not establish
discrimination when it is based on the qualifications of the selected
individual and not some prohibited basis. McAllister v. United States
Postal Service, EEOC Request No. 05931038 (July 28, 1994). We emphasize
that it is Complainant who had the burden to prove, by a preponderance of
the evidence, that the agency's explanations were pretextual. Because we
find that Complainant failed to offer probative evidence demonstrating
that the Agency's selection decision was based on her sex and/or age,
we find that, even if the selectee was preselected, no discrimination
occurred.
We note, that also on appeal, Complainant contends that the SO's
comparison of her qualifications with the Selectee's was highly
subjective. The Commission has recognized that the use of subjective
criteria may offer a convenient pretext for unlawful discrimination. See
Wilson v. United States Postal Service, EEOC Request No. 05921062 (August
12, 1993). On the other hand, subjective criteria are frequently relied
upon in promotions to supervisory or management positions and the use of
such criteria is not, in and of itself, an indicator of discriminatory
motivation. Fodale v. Department of Health and Human Services, EEOC
Request No. 05960344 (October 16, 1998). Even were we to assume that
the Agency did use subjective criteria, the Commission has held that
an employer has more discretion in selecting management level employees
because the qualities needed to successfully perform in such positions
are not easily quantifiable. See White v. Department of Interior, EEOC
Request No. 05930686 (September 1, 1994).
Lastly, we note that on appeal, Complainant contends that she was ranked
higher than the Selectee by the first panel. Although this is true, we
find, for the reasons listed above, that the record contains substantial
evidence to support the AJ's determination that Complainant did not
prove that her non-selection was motivated by discriminatory animus
towards her age or sex.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we concur with the
AJ that Complainant was not subjected to unlawful discrimination as
alleged. Therefore we AFFIRM the agency's final order.
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
____6/18/10______________
Date
1 During the hearing, SO testified that he did not make such a
comment. Hearing Transcript at 228. Moreover, FE testified that she had
no recollection of SO making such a remark, or any other sexiest remark
regarding female employees in the office. Hearing Transcript at 150.
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0120084003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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