01a04154
10-11-2000
Louis Jasmine, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Louis Jasmine v. Department of Veterans Affairs
01A04154
October 11, 2000
.
Louis Jasmine,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04154
Agency No. 983364
DECISION
Louis Jasmine (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his complaint of unlawful 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.<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged that
he was discriminated against on the bases of race (African-American),
color (black) and sex (male) when he was not selected for the position
of Health System Specialist on July 13, 1998.
The record reveals that during the relevant time, complainant was
employed as a Clinical Social Worker, GS-11, at the agency's New Orleans,
Louisiana Medical Center. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on September 17, 1998. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by the
agency. Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of race/color and sex discrimination because he applied and
was qualified for the position, but was not selected in favor of a White
female (S1). The agency then found that the selecting official (SO),
the Director of the Mental Health Service Line, articulated a legitimate
non-discriminatory reason for his selection of S1. Specifically,
SO noted in his affidavit that the position entails complex duties,
and requires decision-making skills and analytical skills which he felt
complainant lacked. SO also noted that S1 had two Masters Degrees and
submitted �KSAOs� which demonstrated her ability to do the required
work. SO stated that complainant did not have these degrees and did not
submit such evidence. In response to an inquiry from complainant as to
why he was not selected, SO noted that he was not the best qualified.
The Chief of Staff of the facility (CS), the direct supervisor of SO,
who was involved in the selection to the extent that he informed SO that
he was impressed by S1, testified that he was impressed with the work
S1 did when she was an administrative resident at the facility under
his supervision.
The agency acknowledged that the testimony of SO lacked credibility,
given that the record indicated that complainant also holds a Masters
Degree and that no applicants submitted KSAOs. The agency concluded
from this evidence, from CS's comments, and from testimony of other
witnesses, that S1 was likely pre-selected for the position. Noting that
pre-selection, in and of itself, does not establish pretext, the agency
went on to conclude that complainant did not submit evidence sufficient
to indicate that the pre-selection was motivated by discrimination.
In response to complainant's argument that Black males were generally
not hired for top management positions at the facility, the agency
noted that while complainant's evidence established that there were more
White females than Black Males represented at the higher grade levels,
the evidence submitted did not include information as to the racial or
gender composition of the relevant labor pool. The agency also noted
that complainant's evidence did not include a breakdown of the race and
sex of the qualified applicants from whom top positions were filled.
Concluding that this type of evidence was necessary in order to draw
conclusions from the higher percentage of White females in higher grade
positions, the agency held that such data did not establish pretext.
Next, the agency noted that while S1 had only about a year of experience
at the agency, whereas complainant had more than 8 years, S1 had many
years of relevant experience outside the agency. The agency stated that
despite the lack of credibility of management witnesses and the evidence
of pre-selection, S1 was arguably better qualified than complainant.
The agency concluded that the record did not support the finding that
complainant's qualifications were so plainly superior so as to warrant
a finding of pretext.
On appeal, complainant contends that the investigator's conclusion that
complainant's non-selection was motivated by his race/color and sex, has
more credibility than that of the FAD, as the investigator was on-site
and interviewed the witnesses. Complainant argues that it is illogical
for the agency to acknowledge that its witnesses lacked credibility and
that S1 was pre-selected, without also concluding that the selection
was based on a discriminatory motive.
In response, the agency argues that it was �scrupulously honest�
in noting in the FAD that certain witnesses lacked credibility and
that pre-selection was likely. It notes that the law is clear that
pre-selection does not violate Title VII when the pre-selection is
based on the qualifications of the selectee and not on a prohibited
discriminatory basis. The agency concludes that complainant's appeal
brief removes the FAD's conclusions from the appropriate context in an
attempt to make those conclusions support a finding of discrimination.
The agency asks that its FAD be affirmed.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the Commission agrees with the agency that
complainant, while establishing a prima facie case of race/color and sex
discrimination, failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination.
In reaching this conclusion, we note that the agency articulated
a legitimate non-discriminatory reason for selecting S1, namely,
that she was the best qualified. 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, while complainant has more experience
working within the agency, S1 has a great deal of relevant management
experience in the private sector and nothing in the position description
indicates that the position requires experience in mental health or
social work specifically. For example, the position description notes
that the position requires knowledge of qualitative and quantitative
methods for analyzing the effectiveness, efficiency and productivity of
administrative and clinical programs. S1's resume indicates that she held
a top administrative position at a private hospital for almost ten years.
Complainant's current position is as a social worker, and his current
position description indicates that he deals mainly with patient care.
Complainant's management and administrative experience stems from his
years of serving as a union steward and president. After a review of
the record, we find that although both candidates were qualified for the
position, complainant's qualifications were not observably superior to
those of S1.
Complainant also attempts to establish pretext by arguing that S1 was
pre-selected for the position, a point that the agency essentially
concedes. However, the agency is correct that pre-selection, in and
of itself, does not establish pretext. See Jenkins v. Department of
the Interior, EEOC Request No. 05940284 (March 3, 1995). Rather, there
must be evidence that the pre-selection was motivated by discriminatory
animus. See Goostree v. State of Tennessee, 796 F.2d 894, 861 (6th
Cir. 1986). Furthermore, it is not unlawful under Title VII to favor
someone who the employer believes will perform the job better, or to
be motivated by favoritism so long as the employer was not motivated
by prohibited considerations. See Holder v. City of Raleigh, 867 F.2d
823, 825 (4th Cir. 1989); Benzies v. Illinois Dept. of Mental Health and
Developmental Disabilities, 810 F.2d 146, 148 (7th Cir. 1987). Based on
comments made by CS, it seems likely that if S1 was preselected, this
preselection was based on the Chief of Staff's high opinion of her, gained
when she worked for him, rather than on complainant's protected bases.
Complainant has offered little to establish that any pre-selection was
motivated by his race/color or sex. Complainant's reliance on the fact
that Black males make up a lower percentage than White females in the
top grades within the facility is misplaced. The agency correctly notes
that there is no evidence of the racial and/or gender breakdown of the
qualified applicants for these top grade positions, nor evidence of the
relevant labor pool. The fact that there was a lower percentage of Black
males than White females in higher grade positions is not sufficient to
establish discrimination.
Finally, we note that the lack of credibility of the selecting officials,
while troubling, does not establish that the officials were attempting
to disguise a discriminatory animus. Indeed, it appears more likely
that they were attempting to disguise the fact that S1 was pre-selected.
Complainant has the burden of establishing that discrimination,
not some other non-disclosed non-discriminatory reason, motivated
his non-selection. After a careful review of the record, including
complainant's arguments on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we find that
complainant failed to establish by a preponderance of the evidence that
he was subjected to discrimination. Accordingly, the agency's finding
of no discrimination was proper and is AFFIRMED.
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
October 11, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.