01976171
01-06-2000
Louis E. Martin, Complainant, v. William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Louis E. Martin v. Department of Defense
01976171
January 6, 2000
Louis E. Martin, )
Complainant, )
) Appeal No. 01976171
v. ) Agency No. GA96017
)
William S. Cohen, )
Secretary, )
Department of Defense )
(Defense Logistics Agency), )
Agency. )
)
DECISION
Complainant (Louis E. Martin) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (Black), sex (male), and age (60 at
time of complaint), in violation of Title VII of the Civil Rights Act of
1964, 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.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether complainant has proven by a preponderance
of the evidence that he was subjected to employment discrimination on
the above-cited bases when he was not selected as a Program Analyst,
GS-343-07, under Job Opportunity Announcement (JOA) Number 14-66.
BACKGROUND
The record reveals that at the time of the selection at issue, complainant
was employed as a Procurement Assistant, GS-1106-06, at the Defense
Supply Center in Richmond, Virginia (DSCR). A position for Program
Analyst became available in the Division of Installation Services,
Program Management Branch. Complainant applied for this position and
was certified as eligible. After his interview, complainant received
a written notification on April 19, 1996, that he had not been selected
for the position and that the selectee was a white female younger than he
(S1: white, female, 27 at time of complaint).
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on July 10, 1996.
At the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
The FAD concluded that complainant established a prima facie case of race,
sex and age discrimination when he demonstrated that he was a member of
several protected groups, and was qualified for the position but was
not selected, while the selectee was not within his protected groups.
The FAD went on to conclude, however, that management had articulated
a legitimate non-discriminatory reason for the selection of S1; namely,
that complainant was not the best qualified candidate for the position.
Finally, the FAD concluded that complainant did not establish that
management's articulated reason was pretextual or that the true reason
for his nonselection was discrimination. While the FAD acknowledged
that the selecting official (SO: white, female, 49 at time of complaint)
may have underrated complainant's software experience, it concluded that
this did not establish pretext.
Complainant raises no contentions on appeal. The agency asks that we
affirm the FAD.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination or retaliation,
the allocation of burdens and order of presentation of proof in a Title
VII case, and an ADEA case, is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Loeb v. Textron, Inc., 600 F. 2d 1003
(1st Cir. 1979)
Complainant has the initial burden of establishing a prima facie case
of discrimination. A prima facie case of discrimination based on sex and
race in a nonselection case is established where complainant has produced
sufficient evidence to show that (1) he is a member of a protected
group(s); (2) he was qualified for the position; (3) he was not selected
for the position; and (4) he was accorded treatment different from that
given a person(s) otherwise similarly situated who is not a member of his
protected groups. See Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). Complainant may also meet this burden by
presenting other evidence which raises an inference of discrimination.
Potter v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
In a case alleging discrimination under the ADEA, complainant can
establish a prima facie case of discrimination by showing that (1) he was
at least forty years of age at the time of the nonselection; (2) he was
qualified for the position; (3) he was not selected for the position; and
(4) he was accorded treatment different from that given to a person(s)
otherwise similarly situated who is not a member of his protected group
or is considerably younger than he. See O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308 (1996); Carver v. Department of Interior,
EEOC Request No. 05930832 (May 12, 1994).<2>
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).
If the agency articulates a reason for its actions, the burden of
production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason is
discrimination or retaliation. Throughout, complainant retains the burden
of proof to establish discrimination by a preponderance of the evidence.
It is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis
in original).
In the instant case, complainant has stated prima facie cases of race,
sex and age discrimination. As the agency concedes, complainant is a
60-year old Black male, he applied and was qualified for the position,
and he was not selected. The selectee was a 27-year-old white female
and thus outside complainant's protected groups.
The agency articulated a legitimate non-discriminatory reason for its
selection of S1 over complainant. SO, the Program Analyst Supervisor
in the Program Management Branch, testified that complainant was not
the best qualified. She testified that in addition to the requirements
noted in the JOA, she was looking for a candidate with a background in
administrative regulations, Personal Computer (PC) usage, experience with
vendors, and writing ability. She testified that based on complainant's
application and interview she concluded that complainant did not have
a background in administrative regulation, had no PC experience, had no
experience with vendors and had average writing ability. In addition,
because complainant was a member of a underrepresented group within the
agency (Black male), SO provided an explanation to the Office of Program
Management for his nonselection. In this memorandum, SO noted that she
was also looking for a candidate with skill in negotiating contracts,
dealing with vendors and working with several software databases.
SO found that complainant did not have these skills.
SO also testified that S1 was the best qualified candidate and was
selected because her skills and qualifications were most suited for the
position. SO noted that S1 had worked directly under SO for seven months
prior to her selection and that while she was initially unfamiliar with
the regulations of the office, she became familiar with them over time.
SO also noted that S1 had PC usage prior to this time and used the PC
extensively in performing her tasks.
Because the agency articulated a legitimate non-discriminatory reason
for the selection of S1, complainant must demonstrate that this reason is
pretextual and/or that the agency was motivated by discriminatory animus
in selecting S1. In a non-selection case pretext may be demonstrated in
a number of ways, including a showing that complainant's qualifications
are observably superior to those of the selectee. Bauer v. Bailor, 647
F.2d 1037, 1048 (10th Cir. 1981); Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998).
In the case at hand, complainant argues that S0 misjudged his experience.
Specifically, complainant argues that he had experience dealing with
vendors and has many years of experience with PC usage. Complainant
contends that when SO questioned him during the interview about what
she felt was his lack of PC usage, he referred her to his application
which noted his experience in this area, but that SO did not respond.
Complainant's application does indicate that he had experience with
PCs, as noted by the investigator in the Report of Investigation and
acknowledged in the FAD. Moreover, complainant noted that he had
dealt directly with machine vendors continually, another qualification
which SO stated was essential and denied complainant had. A review of
complainant's application, however, illustrates that he dealt directly
with vendors on a consistent basis in reference to the maintenance and
upkeep of various office machines. Complainant has thus cast doubt on
two of the several qualifications SO indicated dictated her selection.
Complainant also argues that there were no males working at the site where
the vacancy existed and that all the employees he saw in the office were
young white females. A review of the record reveals, however, that SO
supervised a staff of ten persons, including two African American females,
one African American male, five Caucasian females and one Caucasian male.
The fact that SO's small staff had more females than males and more
White than Black employees does not establish sex or race discrimination.
While the evidence indicates that SO misjudged complainant's experience
in two areas, this does not establish that the selection of S1 was based
on discriminatory animus. Other evidence in the record establishes that
S1 did have greater familiarity with administrative regulations and
was at least equally experienced in the areas of PC usage and dealing
with vendors. Moreover, SO testified that S1 had worked with her
for the past seven months and had become familiar with the applicable
regulations, while none of the other candidates had. This testimony
suggests that, as complainant contends, there may have been an element
of pre-selection involved in the selection of S1. Pre-selection,
however, does not violate Title VII or the ADEA when it is based on the
qualifications of the pre-selected party and not on some basis prohibited
by Title VII or the ADEA. See Gee v. Department of Veterans Affairs,
EEOC Appeal No. 01974132 (May 20, 1999), citing Goostree v. State of
Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). In the case at hand,
the suggestion that S1's experience working with SO was a factor in
her selection tends to weigh against the notion that SO's misjudgment
of complainant's qualifications was based on discriminatory animus.
Rather, it seems that SO was most familiar with S1's work habits and
qualifications and based on her experience with S1, felt S1 to be the
best candidate for the position.
While the interview and selection process in this case was not optimum,
the preponderance of the evidence does not establish that complainant's
nonselection was motivated by race, sex or age discrimination.
Accordingly, the agency's finding of no discrimination in the nonselection
of complainant for the position of Program Analyst is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
1/6/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
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. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.
2 We note that this is only one method of establishing a prima face case
of age discrimination, and that a complainant is not precluded from such
a showing merely because the comparative employee(s) is not considerably
younger. See Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996).