01A40811_r
03-17-2004
Kenneth J. Polk, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.
Kenneth J. Polk v. Department of the Army
01A40811
March 17, 2004
.
Kenneth J. Polk,
Complainant,
v.
R. L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A40811
Agency No. BEHTFO0201C0120
Hearing No. 100-A3-7187X
DECISION
Complainant filed a formal EEO complaint in which he claimed that
the agency discriminated against him on the bases of his race
(African-American) and sex (male) when he was not selected for the
position of Chief, Sport and Fitness Division (NF-301-05), in the
Community and Family Support Center.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request
for a hearing. Without holding a hearing, the AJ issued a decision
finding no discrimination. On October 15, 2003, the agency issued a
final action implementing the AJ's decision. Thereafter, complainant
filed the instant appeal.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
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 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.
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. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990). In this
case, the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Consequently, we will
dispense with an examination of whether complainant established a prima
facie case with respect to the above cited issues and review below, the
reasons articulated by the agency for its actions as well as complainant's
effort to prove pretext.
With respect to complainant not being selected for the position of
Chief, Sports and Fitness Division, we note that an agency has the
discretion to choose among equally qualified candidates so long as
the decision is not premised on an unlawful factor. See Burdine, 450
U.S. at 258-259; Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985).
We note that in nonselection cases, pretext may be found where the
complainant's qualifications are demonstrably superior to the selectee's
qualifications. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
We shall assume arguendo, that complainant has set forth a prima
facie case of discrimination on the alleged bases of race and sex.
Complainant was ranked as one of the top five candidates and each of
these candidates was interviewed by a three member panel that included
the selecting official, a Caucasian female. The selectee, a Caucasian
female, received the highest score from two of the members, including
the selecting official. Complainant received the highest score from
the other member of the panel. The selecting official explained that
she chose the selectee based on her interview, supervisory experience,
and budgetary experience. The selecting official stated that the
selectee had an excellent interview as she demonstrated presence,
had strong qualifications, and she displayed the ability to present
her qualifications. Further, the selecting official stated that the
selectee addressed managing the entire division and not just the sports
portion like complainant did. According to the selecting official, the
selectee had more supervisory experience and equivalent or better budget
experience than the other four candidates. With regard to complainant,
the selecting official stated that she had concerns about his budget
ability because there was an instance when he brought her two sets of
travel orders and the costs were miscalculated by one hundred percent.
The selecting official further noted that after the former Chief of the
Sport and Fitness Division died, complainant did not take the initiative
to assume some of his duties. We find that the agency articulated
legitimate, nondiscriminatory reasons for complainant's nonselection.
Complainant claimed that he should have been selected because he would
have had the highest score among the five candidates if the selecting
official had tallied the total scores assigned by the three panel members.
Complainant contended that he has an extensive amount of budgetary
experience and that he has played a major role in many initiatives that
had been implemented. Complainant further argued that the selecting
official engaged in preselection by planning to choose the selectee from
the outset of the selection process. Upon review of the entire record,
we find that complainant's qualifications are not so superior to that of
the selectee for the position at issue as to warrant the conclusion that
complainant's nonselection was attributable to discriminatory motivation.
We further find that the selecting official acted within her discretion
when she chose not to tally the total points assigned to the five
candidates by the three member panel. With respect to complainant's
claim of preselection, we observe that even if preselection occurred,
complainant has not shown that any such preselection was motivated by
a discriminatory animus. See Goostree v. Tennessee, 796 F.2d 854, 861
(6th Cir. 1986). We find that complainant has failed to establish,
by a preponderance of the evidence, that the agency's reasons for his
nonselection were pretextual and intended to mask discriminatory intent.
After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the agency's
final action finding no discrimination, because the Administrative
Judge's issuance of a decision without a hearing was appropriate and
a preponderance of the record evidence does not establish that race or
sex 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
March 17, 2004
__________________
Date