Larry S. Smith, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01986041 (E.E.O.C. Nov. 17, 2000)

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.