Louis E. Martin, Complainant,v.William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionJan 6, 2000
01976171 (E.E.O.C. Jan. 6, 2000)

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).