01a40832
03-30-2005
Kenneth W. Fontenot, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Kenneth W. Fontenot v. Department of Veterans Affairs
01A40832
March 30, 2005
.
Kenneth W. Fontenot,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40832
Agency No. 2003-0580-2001117846
Hearing No. 330-A2-8082X
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., 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. For the following reasons, the Commission AFFIRMS the agency's
final order.
The record reveals that complainant, a Cook, WG-7404-8, in Nutrition and
Food Service, at the VA Medical Center in Houston, Texas, filed a formal
EEO complaint on March 21, 2001, alleging that the agency discriminated
against him on the bases of race (Black), age (D.O.B. 1/16/57), and
reprisal for prior EEO activity [arising under Title VII] when he learned
that he was not selected for (1) the Cook Supervisor, WS-7404-10 position,
vacancy announcement number 178(00), on January 29, 2001; or (2) the Cook
Supervisor, WS-7404-07 position, vacancy announcement number 129(00),
on February 7, 2001.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ initially found that as to issue (1), complainant established
a prima facie case of race and age discrimination because the selectee
was not in complainant's protected classes. The AJ further found that
the agency articulated legitimate, nondiscriminatory reasons for its
action; namely, complainant was one of eighteen applicants interviewed
by a selection panel. The panel scored the applicants in four areas:
interview, supervisory experience, educational level and labor management.
The selectee ranked number one, with a score of 15.7, while complainant
received a score of 8.3. The AJ found that the panel mutually agreed that
the selectee had skills and traits that far exceeded those required for
the position. In particular, the selectee interviewed well, possessed
extensive supervisory experience, computer skills, an associates
degree and negotiation skills. The AJ found that the panel concluded
that complainant was not as qualified despite his twenty-six years
of experience, in that he did not interview well, his supervisory and
labor management experience was minimal, he only possessed a high school
diploma, and his computer skills were poor. The selecting official
testified that she relied on the selection panel's recommendation.
The AJ then found that complainant failed to persuade him that the
agency's reason was a pretext for race or age discrimination. The AJ
noted that complainant contended that the selectee was preselected.
The AJ noted that preselection does not violate Title VII when it is
based on the qualifications of the preselected party and not some basis
prohibited by Title VII. The AJ also found that complainant failed to
show that his qualifications were far superior to those of the selectee.
Accordingly, the AJ found no discrimination.
As to issue (2), the AJ found that complainant failed to establish a
prima facie case of race or age discrimination as the selectee was in his
protected groups. The AJ nevertheless assumed arguendo that complainant
had established a prima facie case, and further found that the agency
articulated legitimate, nondiscriminatory reasons for its actions.<1>
The AJ found that the only candidates considered for the position in
issue (2) were the top three candidates from the selection process
for the position in issue (1). Complainant was not among the top three
candidates, therefore, he was not considered for the position in issue
(2). The AJ further found that despite complainant's argument that
the agency took several illegal procedural actions and the interview
questions did not relate to the position, complainant still failed to
show how his experience and tenure rendered his qualifications for the
position far superior than the selectee. Accordingly, the AJ found no
discrimination.
As to reprisal, the AJ found that complainant filed EEO complaints in
1995 and 1996 against the Supervisory Dietician (S1), an individual who
was significantly involved with the selection process for the first Cook
Supervisor position. The AJ found, however, that the Clinical Support
Service Line Executive (E1) was the selecting official, and she was
unaware of complainant's prior EEO activity. Therefore, the AJ found that
complainant failed to establish a prima facie case of retaliation. The AJ
nevertheless assumed arguendo that complainant had established a prima
facie case, and further found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ then found that
complainant failed to persuade him that the agency's reason was a pretext
for retaliation. The agency's final order implemented the AJ's decision.
On appeal, complainant contends that over the past 24 years, there has
only been one Black man in the Houston Veterans Administration Medical
Center to reach the ranks of supervisor over predominately Black and/or
minority workers above the ranks of WS-8. Additionally, complainant
contends that the evidence of record invalidates the reasons offered by
the agency for the challenged actions. In response, the agency requests
that we affirm its final order.
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.
The agency has 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. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may
be able to establish pretext with a showing that his qualifications were
plainly superior to those of the selectees. Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). In this case, complainant has not made
the requisite showing concerning his qualifications for either position.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that any of the agency's actions were in retaliation for complainant's
prior EEO activity or were motivated by discriminatory animus toward
complainant's race or age. 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 (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 30, 2005
__________________
Date
1 The record indicates that the selectee for the position in (1) became
the selecting official for the position in (2).