01976588
10-06-1999
Leon N. Martin, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Leon N. Martin v. Department of the Army
01976588
October 6, 1999
Leon N. Martin, )
Appellant, )
) Appeal No. 01976588
v. ) Agency No. AD7R9506F0110
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
)
DECISION
Appellant timely filed an appeal with the Commission from a final
decision of the agency concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. � 2000e et seq. The appeal is accepted in accordance with
EEOC Order No. 960, as amended. See 29 C.F.R. � 1614.402(a).
The issue presented in this case is whether the agency discriminated
against appellant on the basis of race (white) by selecting a black
candidate for the position of supervisory telecommunications equipment
operator (STEO) in August 1994. In its final decision, the agency found
that appellant did not present evidence sufficient to establish his
claim of discrimination. It found that, although appellant was one of
the best-qualified candidates for the position, the selecting official
chose the selectee based upon his responses to the interview questions,
and to the job elements listed in the vacancy announcement.
To prove discrimination, appellant must generally establish a prima
facie case and then show that the reasons articulated by the agency for
its actions were pretextual. McDonnell Douglass Corp. v. Green, 411
U.S. 792, 802-05 (1973); Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978); Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253-56 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993). Where, however, the agency has established legitimate,
nondiscriminatory reasons for its conduct, the trier of fact may dispense
with the prima facie inquiry and proceed to the ultimate stage of the
analysis, i.e., whether appellant has proven by preponderant evidence
that the agency's explanation was a pretext for actions motivated by
prohibited discriminatory animus. 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).
The selecting official (SO) stated that she awarded points to each
candidate based on her assessment of experience, education and training,
awards, suggestions, the interview, and supervisory potential. The SO's
records from the STEO selection indicated that she gave appellant 37
points and the selectee 38 points. In the experience category, she
rated appellant "ten" and the selectee "eight." She gave appellant
eight points in the categories of interview and supervisory potential,
while she gave the selectee ten points (maximum) for the interview and
nine points for supervisory potential. The SO stated in her affidavit that
she chose the selectee over appellant based on the interview and upon the
selectee's response to the job elements. We note that the selectee's
application included a supplemental narrative statement addressing the
five job elements listed in the vacancy announcement. No corresponding
document appears in appellant's application. Investigative Report (IR)
57, 71-72, 136-37, 163.
The agency generally 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. Burdine, 450 U.S. at
259; Vanek v. Department of the Treasury, EEOC Request No. 05940906
(January 16, 1997); Kohlmeyer v. Department of the Air Force, EEOC Request
No. 05960038 (August 8, 1996). On appeal, appellant argues that the fact
that the selectee was only a GS-6 employee who was advanced two grades,
coupled with the fact that he, appellant, was the selectee's first line
supervisor is sufficient to establish pretext. Appellant also argues that
the SO, who is black, had no record of appointing a white candidate to
a supervisory or management position, and that the SO told him that she
was, "taking care of her people" when he asked her about his prospects
for career advancement.
We agree that the selecting official's decision to promote a GS-6
employee over the GS-7 employee that was his supervisor is, on its face,
an idiosyncratic decision that deserves closer scrutiny. See White
v. Department of the Army, EEOC Request No. 05930278 (February 25,
1994); Loeb v. Textron Corp., 600 F.2d 1003, 1012, n. 6 (1st Cir. 1979).
Nevertheless, we find that the SO's assessment that the selectee had
the edge in supervisory experience is supported by the record. The SO
stated in her interview notes that the selectee had years of supervisory
experience while in active military service. IR 161. While it is true
that appellant was serving as a first-line STEO at the time of the
vacancy announcement, a review of the selectee's application package
confirms that the selectee did have extensive supervisory and management
experience in the communications field while serving in the Air Force. He
served in numerous positions, including first and second level supervisory
positions, managerial positions, and administrative positions, including a
stint as a communications superintendent. IR 115-21. This was a contest
between two highly qualified candidates, and the fact that the SO made
her decision based upon her subjective evaluation of the candidates'
managerial potential is not enough, by itself, to establish pretext.
We must now determine whether there are any other factors that would
demonstrate pretext in light of appellant's failure to show that his
qualifications were plainly superior to those of the selectee. See Wasser
v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995);
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
The record indicates that the SO made 14 selections between August 1992
and August 1994. She appointed black candidates to fill two GS-8 and two
GS-9 slots. She also appointed three whites and one black to fill four
GS-6 positions. IR 56, 167-68. While this pattern has some evidentiary
value, it is not sufficient to undermine the SO's conclusion regarding
the relative qualifications of appellant and the selectee.
Finally, when asked by the investigator why he thought that his
nonselection was discriminatory, appellant replied that he could think
of no reason other than the statement that the SO made to him that she
was "taking care of her people." IR 49, 50, 55. Appellant identified
the location at which the SO allegedly made the statement, but could
not remember the date. IR 50. The SO denied that she ever made
that statement. IR 57. Appellant has not presented any documents or
testimony that contradicts the SO. We can therefore give no evidentiary
weight to that statement.
Based upon the record, and for the foregoing reasons, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
Oct. 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations