0120080339
06-21-2010
Lawrence C. Carter, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Lawrence C. Carter,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080339
Agency No. ARBELVOIR06NOV04588
DECISION
On October 22, 2007, Complainant filed an appeal from the Agency's October
18, 2007 final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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 decision.
ISSUES PRESENTED
Whether Complainant was discriminated against on the bases of race
(Black), sex (male), and age (59) when he was not given a $2,000.00
performance award and not selected for a Contract Specialist (GG-1102-14)
position.
BACKGROUND
At the time of his complaint, Complainant worked as a Contracting Officer
(GG-1102-13) at the Agency's U.S. Army Garrison-Fort Belvoir Intelligence
and Security Command facility in Fort Belvior, Virginia. His primary
responsibilities included reviewing procurement packages to determine
appropriate contract types, analyzing bids and proposals, conducting
negotiations, preparing contract award documents, monitoring contractor
performance, and modifying contracts with respect to solicitations
and bids.
On October 25, 2006, the Principle Acquisition Responsible for
Contracting, Complainant's second-level supervisor (S2), and the Director
of Contracting, (S1) awarded each member of the five-member contract
staff cash bonuses based on their work performance from May 30, 2005,
to June 30, 2006. The record shows that all five employees, including
Complainant, received performance ratings of excellent.
Complainant's performance rating indicated that he completed all contract
items on time, approved and released numerous modifications to correct
errors associated with many contract actions, made certain that Agency
customers were provided information regarding policy changes and funding
concerns, actively engaged the Directorate to support the idea of wide
area workflow, excellently performed team leader duties with limited
staff and increased workload, and coached team members in matters
regarding customers and contractual actions. Complainant procured and
managed over $10 million dollars in contracts, which contributed to
the Command's ability to execute its budget for fiscal year 2006, and
prompted one of his customers to issue him an on-the-spot cash bonus in
the amount of $500. S1 stated that she initially scored Complainant in
the successful range, but decided to increase his rating to excellent
because he had made considerable progress throughout the year.
S1 requested an award of $1,000.00 for Complainant, but it was denied by
S2, who had been in her position three days before approving Complainant's
performance appraisal. S2 only approved a $500 award. S2 stated
that after speaking with S1 about Complainant's work performance she
determined that he was not working at the same level of his co-workers.
She stated that the Agency had examples of each employees work product,
and the difference in terms of quality and complexity was obvious.
S1 stated that Complainant started the performance period slowly but by
the end of the year, his performance was superlative. Though awarded in
October 2006, the effective date of the award was September 15, 2006.
The record does not contain the performance rating of Complainant's
comparators, but does reflect the amount of cash they received for
work accomplishments performed during the relevant time. A White male,
age 52, and a Black male, age 33, each received performance awards of
$1,500; a Black male, age 32, received a performance award of $2,235;
and a Black female, age 55, received an award of $2,000.
On November 22, 2006, Complainant, after learning that he received a
lesser award than his co-workers despite the same performance rating,
contacted an EEO counselor. On December 18, 2006, he filed a formal
complaint of discrimination. On December 27, 2006, Complainant was given
another award of $500, bringing his total award for the ratings period
to $1,000. The record is not clear as to why Complainant received the
second award, but S2 stated that she approved him for $500.00 for the
year, and if he received more than that then he got more than she thought
he should have.
In January 2007, S2 was the selecting official for a Contract Specialist
position for which Complainant and 34 other applicants had applied.
A subject matter expert panel rated each applicant, and gave them scores
ranging from 24 to 65. Complainant received a score of 38. Consequently,
Complainant was ranked 23rd.
Once the rankings were complete, the top seven candidates were referred
to S2 for interviews. S2 interviewed only three of the seven, because
the other four either turned down the interview or could not be located.
Complainant was not among those referred as the cut off score for referral
was 55. The person ultimately chosen for the job, a White female,
received a score of 57. S1 played no role in the selection process.
On January 16, 2007, Complainant learned that he was not selected for the
position. On February 12, 2007, he requested that the Agency consolidate
this matter with a complaint he had filed in December. On February 21,
2007, the Agency granted Complainant's request. From April 26 - May
16, 2007, the Agency conducted an EEO investigation of the performance
appraisal and non-selection.
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). In accordance with
Complainant's request, the Agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). The decision concluded that Complainant failed to
prove he was subjected to discrimination as alleged. Complainant filed
this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that he has been subjected to additional
incidents of discrimination, and has filed additional EEO complaints.
He asks that we remand this case to the EEOC's Baltimore District
Office to consolidate with a class complaint he has pending before an AJ.
He also asks that we remand another complaint, filed with the Commission's
Washington Field Office with this class complaint as well. These cases,
respectively, have been identified as EEOC Hearing Nos: 570-2008-0073X,
and 570-2008-00495X.
The Agency argues that the Commission should not consolidate Complainant's
various complaints because it would amount to the Commission's acceptance
of new evidence that could not have been available at the time of the
events giving rise to the instant complaint. The Agency goes on to
state that such evidence could not have been available when the Agency
conducted its investigation into the matters contained herein because
that evidence relates solely to subsequent incidents of discrimination.
ANALYSIS AND FINDINGS
At the outset, we will not consolidate the present complaint with
Complainant's complaints that are pending administrative hearings.
29 C.F.R. � 1614.606. The agency completed its investigation of the
performance appraisal and non-selection at issue herein, and Complainant
chose not to have a hearing on these matters. Consequently, we will
proceed.
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, because the agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
The Agency stated that the reason Complainant's cash award was lower than
those of his counterparts was because the complexity of his work did not
equal that of his coworkers. S1 stated that Complainant did not start
the rating period as a Contract Officer like the others, but instead was a
Contract Specialist without a warrant. This meant that he could not bind
the government to a contract. Once he became a Contract Officer, after
extensive training, the Agency noted that his work improved noticeably as
his responsibility increased, but because he was a new Contract Officer,
and the only one who had not been a Contract Officer the entire duration
of the rating season, his assignments throughout the entire year were
not as comprehensive as those of his comparators.
Additionally, the Agency stated that the reason Complainant was not
selected for the position of Contract Specialist (GG-14) was because
he was not as well qualified as many of the applicants vying for
the position. The agency further stated that the Selectee, who had
experience conducting price analyses, leading teams, procuring large
source selections, and demonstrated experience in conducting analytical
work, was selected for her broad background. The Agency also noted that
Complainant was not referred for an interview because the cut off was 55,
and he received a score of 38.
We now look to see if Complainant has presented evidence tending to
establish that it was more likely than not that the reasons proffered
by the agency were designed to mask a discriminatory intent. We find
that he has not. With respect to his performance award, Complainant's
maintains that he should have received the same amount as his co-workers
because he received the same rating. However, as noted above, the record
indicates that the quality and complexity of their work was different.
Though Complainant procured and managed $10,000,000 dollars in contracts,
some of his counterparts were managing contracts worth billions. Also,
it is not particularly surprising that Complainant, being the least
experienced Contract Officer, was assigned less complex work to allow him
to learn, as opposed to being inundated with more comprehensive projects.
Accordingly, we find that Complainant has failed to meet his burden of
establishing pretext.
With respect to his non-selection, Complainant maintains that he was more
qualified than the Selectee. In a non-selection case, a Complainant
can establish pretext by showing that his qualifications are "plainly
superior" to those of selectee. Bauer v. Bailor, 647 F.2d 1037, 1048
(10th Cir. 1981). A review of Complainant's qualifications as compared
with those of the Selectee's does not indicate that Complainant's
qualifications were plainly superior. The experience reflected on the
Selectee's resume is more comprehensive as it relates to the particular
job in question, and more relevant as it relates to contracting and
procurement in general. Accordingly, we find that Complainant has failed
to show that the Agency's reason were pretextual.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find
that Complainant has failed to prove that he was discriminated against
as alleged. We hereby AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
____6/21/10______________
Date
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0120080339
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080339