01A03750
05-30-2001
Lee R. Batchelor, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Lee R. Batchelor v. Department of Veterans Affairs
01A03750
05-30-01
.
Lee R. Batchelor,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A03750
Agency No. 95-1235
Hearing No. 160-96-8115-X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the
complainant's appeal from the agency's final decision of March 17, 2000
in the above-entitled matter. The final agency decision (FAD) addressed
complainant's claim that he was discriminated against based on his race
(African-American) and his age (54) when, on January 5, 1995, he was
not selected for the position of Environmental Management Services (EMS)
�Housekeeping Aid Foreman.�
According to the record, complainant filed a formal EEO complaint raising
the issue stated above. Following an investigation of the complaint,
he requested a hearing before an EEOC administrative judge (AJ), which
was held on January 14, 2000. On January 21, 2000, the AJ issued a
recommended decision (RD) which found no discrimination. Thereafter,
the agency issued its FAD which adopted the AJ's RD. Complainant now
appeals the FAD.
The AJ found that complainant established a prima facie case of race
discrimination because he applied for the position, was qualified
and considered for it, but was not selected in favor of a White
applicant. The AJ also concluded that the agency articulated legitimate,
nondiscriminatory reasons for its action, namely that the selectee was
the best qualified individual for the position. The AJ also noted panel
members' testimony that the selectee had superior communication skills
which were critical to interacting with the agency's Nursing Department
on a regular basis, and that the selectee was better able to lead the
workers and assist them in complying or completing their duties.
Ultimately, the AJ found that complainant failed to establish pretext. The
AJ concluded that complainant failed to introduce any evidence to dispute
or otherwise undermine the agency's testimony and sworn statements
which explained the interview process, the written interview questions
and the deliberations which resulted in the selection. The AJ stated
that complainant's suspicions regarding the selection process did not
constitute evidence of pretext. Finally, the AJ rejected complainant's
argument that his twenty-eight (28) years of experience, compared to the
selectee's six (6) years, rendered him (complainant) more qualified for
the position.
Regarding complainant's age discrimination claim, the AJ found that
complainant failed to establish a prima facie case as the selectee was
fifty (50) years of age. The AJ found that, for the same reasons stated
above, the agency articulated legitimate, nondiscriminatory reasons for
its action which complainant failed to prove were pretextual.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary analysis fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must initially 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the
Navy, EEOC Request no. 05950351 (December 14, 1995).
We find that the AJ properly determined that complainant failed to prove
that he was discriminated against based on his race or his age. Assuming
that complainant established inferences of race and age discrimination,
we agree that the agency articulated legitimate, nondiscriminatory
reasons for its action. In addition to the reasons stated by the AJ,
the agency submitted evidence that the complainant was not chosen over
the selectee, in part, because he (complainant) had not demonstrated
effectiveness in the areas of: (1) keeping records; (2) operating
the computer; and, (3) effectively supervising other employees during
periods when he served as Acting Supervisor. One of the panel members
who had worked with complainant stated that he (the panel member)
had had problems with complainant reporting to work on time, planning
ahead, and completing assignments. By contrast, members of the selection
panel provided testimony that the selectee was consistently deemed more
qualified than complainant with regard to organizational ability and
the ability to effectively supervise. Records reveal that the selectee
was rated higher than complainant in the category of ability to organize,
to keep records, to plan assignments, and to inspect work operations.
We find that complainant failed to prove pretext. The Commission carefully
considered the testimony of several of complainant's co-workers, some of
whom thought that complainant should have been selected because of his 28
years of experience. However, most of the co-workers seemed to think that
the selectee was favored for selection because of his close relationship
with some of the panel members. While it appears from the record that
preselection and favoritism may have played a role in the selection
process, we note that while preselection or favoritism may discredit an
agency's explanation for its selection, preselection by itself does not
violate Title VII if it is not based on a basis prohibited by Title VII.
Goosetree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).
We find that complainant failed to submit evidence which adequately
rebutted the agency's specific reasons for his nonselection.
While complainant appears to have been well liked by his co-workers,
he failed to submit evidence which adequately rebutted the agency's
specific reasons for his nonselection, particularly in the areas of
organizational abilities and record keeping skill. Complainant also
submitted no evidence that any favoritism towards the selectee was based
on racial bias on the part of the selecting officials. Accordingly,
after a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency decision
of March 17, 2000 because the Administrative Judge's ultimate finding,
that unlawful employment discrimination was not proven by a preponderance
of the evidence, is supported by the record.
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 M. Hadden, Director
Office of Federal Operations
____05-30-01______________
Date