01986041
11-17-2000
Larry S. Smith, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Larry S. Smith v. United States Department of Agriculture
01986041
November 17, 2000
.
Larry S. Smith,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01986041
Agency No.950825
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Accordingly, the appeal is accepted in accordance with 29
C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the basis of race (Caucasian) when he was not selected
for the Senior Executive Service (SES) position of Regional Director,
Southeastern Region (the Position).
BACKGROUND
Complainant was Deputy Regional Director and Acting Regional Director,
Southwestern Region, Food Safety and Inspection Service (FSIS),when
he applied for the position of Regional Director, Southeastern Region.
He was one of six candidates (5 white, one Black) whose applications were
forwarded to the Food Safety Executive Resource Board (the Panel)<2>
for evaluation. The Panel rated and ranked each applicant against
the managerial and technical requirements of the position. Complainant
was ranked highest with a composite score of 125 points. The list of
candidates and their rankings were then forwarded to the recommending
official (RO), Deputy Administrator, Inspection Operations and Associate
Administrator, for his recommendation to the selecting official (SO),
Acting Under Secretary, FSIS. The RO recommended the only Black candidate
(the Selectee). The Panel rated the Selectee at 101 points.<3>
Complainant claimed that the Selectee was chosen because of his race.
He stated that the only Black senior executive in FSIS had recently
retired, and that the RO told several people that he was under pressure to
fill upper management positions with minorities and women.<4> He stated
that the RO made a notation by the Selectee's name on the evaluation
chart produced by the Panel that he was the only minority candidate.
The RO averred that he noted the Selectee's race on the list given to
the SO after he decided to recommend the Selectee and stated that he made
the notation simply to provide the SO with demographic information.
Complainant claimed that he was more qualified than the Selectee because
he had more experience and better qualifications in each of the relevant
areas identified in the vacancy announcement. He stated that he was
a GS-15 whereas the Selectee was a GS-14. He was a Deputy Regional
Director and, for over nine months, was Acting Regional Director of
the Southwestern Region, whereas the Selectee was an Area Supervisor in
Kentucky.
Complainant stated that the RO overlooked and minimized his
accomplishments and inflated those of the Selectee in order to justify
selecting a minority candidate. Complainant stated that the RO's analysis
of the Selectee's abilities were fabricated untruths and greatly
embellished exaggerations, that the RO's justifications lacked examples
and specificity, stretched and contrived the Selectee's statements into
something better than the Selectee provided on his application, and
added information not present in the Selectee's application. Complainant
also claimed that the Selectee's Application for Federal Employment was
changed after the selection to further justify his selection.<5>
The RO averred that he recommended the Selectee based on his
qualifications and performance, and not on his race. He stated that he
did not see the panel's ranking of each candidate. He stated that he knew
each candidate because he supervised each at one time, and therefore,
did not seek input from other sources. He averred that he analyzed
each application and compared the applicants' knowledge, skills and
abilities to those listed in the vacancy announcement. The RO stated
that he supervised complainant for about a year when complainant was
Director of Slaughter Staff in Washington, and stated that he did not
find complainant to be effective because of complainant's propensity to
change positions every two to three years, leaving others to complete
his projects. The RO also stated that he believed the Selectee had
better communication skills, a broader strategic vision, and was more
open to a team approach than complainant. He averred that the Selectee
was an excellent human resource manager and had more field experience
than complainant.
The RO also averred that the Selectee was the best qualified, and
described his skills in each of the required factors. The RO stated
that for factor #1, Strategic Vision, the Selectee demonstrated
creative thinking by developing insights and solutions into field
inspection problems. For factor #2, Human Resource Management, he
ensured effective resource management by his recruitment, selection,
training, performance appraisal, recognition and disciplinary actions.
For factor #3, Program Development and Evaluation, he was a creative
thinker and developed insights and solutions to problems and fostered
innovation in others. For factor #4, Resource Planning and Management,
he took risks by removing a high level supervisor and replacing him with
existing resources. For factor #5, Organizational Representation and
Liaison, the RO stated that the Selectee had excellent communication
skills and served on several government and industry committees, study
groups and task groups, published several articles, and identified and
analyzed relevant information for problems and encouraged alternate
solutions and plans. The RO stated that the Selectee had the strategic
vision to take a team approach to personnel issues when he was Acting
Regional Director and had excellent communication skills. He noted, under
other factors, the Selectee's military record and research experience.
Complainant cited his own skills and experience, including his work
as group leader on a high visibility project, his communication skills
and experience briefing the Secretary, Deputy Secretary, Congress, and
industry and consumer groups, and his experience as a Regional Director
and Acting Regional Director. Complainant argued that his managerial
experience was at a much higher level than that of the Selectee.
The agency issued a final decision finding that the RO articulated
legitimate, nondiscriminatory and credible reasons for the selection.
The agency noted that it found no wide discrepancy between the credentials
of the complainant and those of the Selectee. Complainant appealed.
FINDINGS AND ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Complainant has the initial burden
of establishing a prima facie case of discrimination. If complainant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Complainant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
This established order of analysis, 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 articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its selection. The RO averred that race
was not a factor in the selection, and stated that he believed the
Selectee was the best qualified candidate for the position based on
his vast field experience, communication skills, strategic vision,
and ability to manage human resourcesq.
The burden returns to complainant to demonstrate that the agency's
reasons were a pretext for discrimination, that is, that the agency was
more likely motivated by discriminatory reasons. Burdine, 450 U.S. at
253. Complainant disputed many of the RO's reasons for the selection,
arguing that he had more experience than the Selectee because he had been
the Acting Regional Director of another region for a number of months,
and that the Selectee's field experience was irrelevant. However, both
the RO and SO stated that the Selectee's field experience was important.
The SO stated that he was not concerned that the Selectee had less
experience as an Acting Regional Director. The RO also stated that
he previously supervised both complainant and the Selectee, and was
therefore familiar with their individual skills and abilities.
An employer has discretion to choose among equally qualified candidates,
provided the decision is not based upon unlawful criteria. The fact that
a trier of fact may think that the employer misjudged the qualifications
of the applicants does not in itself expose it to Title VII liability,
although this may be probative of whether the employer's reasons are
pretexts for discrimination. Loeb v. Textron, Inc., 600 F.2d 1003, 1012
(CA1 1979). The burden is on complainant to prove, by a preponderance of
evidence, that the agency's proffered explanation is either unworthy of
belief or is so unsupported by the record that it is more likely a ruse
designed to conceal a discriminatory motive. Burdine, 450 U.S. at 256.
In a non-selection case, pretext may be demonstrated in a number of ways,
including a showing that an complainant's qualifications are observably
superior to those of the selectee. Bauer v. Bailer, 647 F.2d 1037, 1048
(10th Cir. 1981).
Complainant failed to establish that the RO selected the Selectee
because of his race. The Commission is persuaded that complainant is a
highly qualified, capable manager, that he communicated with high level
government officials and politicians, worked on projects of importance to
public health, and was recognized by the agency on multiple occasions for
exemplary performance. The Commission finds, however, that the Selectee
was also a highly qualified, capable manager, with skills and abilities
fitted to the Position, and that complainant failed to establish that
the skills and abilities seen by the RO as important criteria for this
selection were not valid.
Although complainant submitted statements from co-workers about comments
made by the RO regarding pressure to hire and promote minority applicants,
these comments were made regarding other positions, not the position
at issue. Both the RO and SO averred that there was no pressure or
directive to hire and promote minorities only.
The Commission has consistently held that where there are two equally
desirable candidates competing for the same position, the selecting
official may exercise his prerogative in choosing between the candidates,
and absent discrimination, a trier of fact should not substitute his
judgment for the legitimate exercise of managerial discretion. See
Shapiro v. Social Security Administration, EEOC Request No. 0596 0403
(December 6, 1996). It was within the managerial discretion of the RO
to consider which candidate had the most relevant experience and skills
when he made his recommendation for the Position.
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
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 Hadden, Director
Office of Federal Operations
November 17, 2000
________________________
DATE
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
DATE
_________________________
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. The regulations, as amended, may also be found
at the Commission's website at www.eeoc.gov.
2 The five panel members were unaware of each applicant's race.
3 The other candidates were rated at 113, 106, 101, and 90 points.
4 The Deputy Regional Director of the Southeastern Region averred that
when an area supervisor position was vacant in Florida, the RO told him he
hoped a certain Hispanic employee had a high performance rating because he
wanted to fill the position with a minority. An FSIS Veterinary Medical
Officer averred that the RO told her he needed to select a minority as
head of the Inspections Management Program when that position was vacant
and that the white male acting in that position need not apply for the
job because he was the wrong color.
5 Complainant claimed that the Selectee's response to selection factor
#4 was expanded after his selection. The Personnel Staffing Specialist
averred that after the SO made his selection, the Selectee's application
was sent to the Quality Review Board (QRB) for approval of his entrance
into the Senior Executive Service and that the QRB requested clarification
on the Selectee's response to factor no. 4. She stated that the Selectee
provided a supplemental narrative which she forwarded to the QRB.