0120070966
06-06-2007
Keith T. Turner, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Keith T. Turner,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120070966
Hearing No. 340-2004-00610X
Agency No. 04AFIS007
DECISION
On September 28, 2006, complainant filed an appeal from the agency's July
20, 2006, final order concerning his 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. 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.
On February 10, 2004, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American),
sex (male), and color (Black) when he was not selected for the position
of Management Analyst, GS-343-9/11, in October of 2003.
The record indicates that complainant was employed by the agency as
a Personnel Specialist and Management Analyst between June of 1993
and approximately October 22, 2003, when he left the agency to work
for the Department of Homeland Security. The record indicates that
complainant worked for the agency's Defense Media Center (DMC), and his
immediate supervisor (S1; White male) was the Chief of the DMC's Civilian
Personnel Branch. S1's immediate supervisor (S2; Black male) was the
Chief of Personnel for the agency's Armed Forces Radio and Television
Broadcast Center. The record also indicates that the position at
issue which complainant applied for was in the agency's Defense Visual
Information Center (DIVC), and the Director of the DVIC (White male)
was the selecting official for the position. The selectee (White female)
for the position at issue was working at DVIC as a Management Assistant,
with the Director of the DVIC as her supervisor. In 2000, the Director
of the DVIC rewrote the position descriptions for the DVIC, and wrote
the position description for the Management Analyst position at issue.
S1 assisted the Director of the DVIC in the development of the position
descriptions; however, S1 advised the Director of the DVIC that the
position description for the Management Analyst position did not merit
the grade assigned to the position.
When the Director of the DVIC prepared the position description for
the Management Analyst position at issue, he thought that the position
would replace the selectee's Management Assistant position; however,
S1 believed that the position should be filled competitively and the
position should not be referred to as "the position [the selectee] was
filling" or "[the selectee's] position." As complainant was interested in
the Management Analyst position, he was recused from involvement in the
development of the position and the announcement and selection process.
During the process of developing the position description for the position
at issue, the Director of the DVIC was granted another staff slot and
thus the position became a new position which would have to be posted in
order to be filled. The selectee did not have any role in developing
the position description, but she may have seen some e-mails relevant
to the position. In June of 2003, complainant accepted a job offer
from the Department of Homeland Security, contingent on his passing a
background check. Subsequently, the Management Analyst position at issue
was posted in September of 2003, and complainant applied for the position.
The names of complainant and the selectee were referred to the Director
of the DVIC being qualified for the position. The Director of the DVIC
compared their qualifications and chose the selectee based on her resume
and personal knowledge of her abilities, specifically her familiarity
with the Freedom of Information Act, information technology, writing
skills and her understanding of the agency's mission.
Believing he was the victim of discrimination, complainant sought EEO
counseling and filed the aforementioned EEO complaint. 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
and the AJ held a hearing on November 3-4, 2005 and May 24, 2006, and
issued a decision on June 22, 2006.
The AJ initially found that complainant established a prima facie case
of discrimination on all his alleged bases, as he applied for and was
qualified for the position at issue, and was not selected in favor
of the selectee. However, the AJ found that the agency articulated
a legitimate, nondiscriminatory reason for its actions, namely that
complainant was not selected for the position at issue due to: (1)
the selectee's experience and skills; (2) the Director of the DVIC was
familiar with the selectee's work and abilities; and (3) the DVIC needed
an employee who could perform the requirements of the position with little
training due to staff reductions and a backlog of work. Further, the
AJ found that complainant failed to proffer evidence which established
that the agency's articulated reasons were pretextual in nature. In so
finding, the AJ noted that complainant failed to demonstrate that the
agency's reasons for choosing the selectee were false or were pretexts
for race, color or sex discrimination. The AJ found that the record
supported the Director of the DVIC's statement that the selectee was
more qualified for the position than was complainant. In addition, the
AJ found that complainant failed to establish that his qualifications
were superior to those of the selectee. AJ's Decision at 7. Finally,
while the AJ noted that complainant alleged pretext was evident from
the circumstances surrounding the selection process, he found the means
by which the selectee was chosen for the position was insufficient
to establish pretext.1 The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that he was
subjected to discrimination as alleged. Neither complainant nor the
agency have made arguments on appeal.
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).
We find that complainant has failed to refute the agency's stated reasons
for his non-selection for the position at issue. Complainant has
not shown that his qualifications for the position were so superior
to those of the selectee as to warrant a finding that the agency's
stated reasons are pretextual. See Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). In addition, even if we assume that the selectee was
indeed preselected as complainant alleges, the Commission and the federal
courts have determined that there is nothing unlawful in a preselection
of a candidate to a position if it is based on the qualifications of
the selectee and not on a discriminatory motive. See Nickens v. NASA,
EEOC Request No. 05950329 (Feb. 23, 1996); Goostree v. State of Tennesee,
796 F.2d 854, 861 (6th Cir. 1986); Kennedy v. Landon, 598 F.2d 337, 341
(4th Cir. 1979). As found by the AJ, the selectee not only had relevant
experience, but also had broader and more relevant skills (including
information technology, writing skills and corporate knowledge), the
Director of the DVIC was familiar with her abilities from working with her
and her experience allowed her to work at the DVIC with little training.
Given these facts, complainant would need to provide us with more specific
evidence showing discriminatory animus, but he has not. Without proof of
a demonstrably discriminatory motive, we do not second-guess an agency's
personnel decision. See, e.g., Chavez v. United States Postal Serv., EEOC
Appeal No. 0120055246 (Jan. 5, 2007); see also Carson v. Bethlehem Steel
Corp., 82 F.3d 157, 159 (7th Cir. 1982) (noting that "the question is not
whether the employer made the best, or even a sound, business decision;
it is whether the real reason [was discriminatory]"). As such, we find
that complainant has not shown, by a preponderance of the evidence, that
the agency's stated reasons for his nonselection were pretext intended
to mask discriminatory intent.2
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's order,
because a preponderance of the record evidence does not establish that
discrimination occurred.
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
____6/6/07_______________
Date
1 The AJ also noted that while it was likely that the selectee was
preselected for the position, a preselection in the absence of other
evidence of discrimination was insufficient to establish a violation of
Title VII. AJ's Decision at 9.
2 As noted by the AJ, complainant conceded that at no time did the
Director of the DVIC display hostility or bias toward him. Hearing
Transcript at 22.
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0120070966
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070966