Luis C. Perez, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionAug 3, 2009
0120081002 (E.E.O.C. Aug. 3, 2009)

0120081002

08-03-2009

Luis C. Perez, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Luis C. Perez,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120081002

Hearing No. 480-2006-00281X

Agency No. 056106501295

DECISION

On December 17, 2007, complainant filed an appeal from the agency's

November 8, 2007 final order concerning his equal employment opportunity

(EEO) complaint alleging 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., and the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

an Automotive Mechanic, NA-5823-10, in the Morale, Welfare, and Recreation

Department at the agency's Naval Weapons Station in Seal Beach, CA.

On February 14, 2005, the agency posted a vacancy announcement for the

position of Assistant Golf Course Superintendent, NF-1101-03, at the Navy

Golf Course in Cypress, California. The primary duty of the position

is to assist in the management and operation of the Navy Golf Course.

Complainant applied for the position and was rated qualified. The

selecting official appointed an interview panel to interview, rate, and

rank the candidates and to make a recommendation to him for selection.

One of those selected for the interview panel was the brother-in-law of

a former employee whom complainant testified against in an EEO hearing,

who later resigned prior to being terminated. The panel interviewed

three candidates, and after the interviews, complainant was ranked

second-highest by the panel. Another individual (white, 28 years old,

no prior EEO activity) was selected for the position.

Complainant asserts that he is better qualified for the position

because he has 22 years of experience at the Cyprus location and has

extensive knowledge of the landscaping of the golf course property,

as well as experience with golf course maintenance hydraulic units.

Further, complainant asserts that he can better communicate with the

crew because he is fluent in Spanish.

In contrast, the agency asserts that the selectee was the most qualified

candidate because he clearly answered all questions during the interview

and demonstrated his knowledge and transferable skills. Further,

the agency asserts that the selectee's experience related to equipment

operations, chemical spraying requirements, and supervising staff was

documented on his resume. Finally, the agency asserts that complainant

did not have supervisory experience, did not have first-hand knowledge

of the irrigation system, and lacked experience in chemical spraying.

On June 3, 2005, complainant filed a formal complaint of discrimination

on the bases of race (Hispanic1), national origin (Mexico), age (41),

and in reprisal for prior protected EEO activity when on March 17,

2005, he was not selected for promotion to the position of Assistant

Golf Course Superintendent, NF-1101-03, announcement number 05-004.

During the investigation, it was revealed that the selectee misrepresented

his work experience on his resume and lied about past D.U.I. convictions.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. The AJ held a hearing on August 21, 22, 23, 29,

and 30, 2007. The AJ issued a decision on August 31, 2007, finding

that complainant failed to establish that the agency's legitimate,

non-discriminatory reasons were pretext for discrimination. The agency

subsequently issued a final order adopting the AJ's finding that

complainant failed to prove that he was subjected to discrimination as

alleged.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held. An AJ's

credibility determination based on the demeanor of a witness or on the

tone of voice of a witness will be accepted unless documents or other

objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

Complainant alleges that he was discriminated against when he was

not selected for the Assistant Golf Course Superintendent position

on the bases of his race (Hispanic), national origin (Mexico), age

(41), and in reprisal for prior protected EEO activity. To prevail

in a disparate treatment claim such as this, complainant must satisfy

the three-part evidentiary scheme fashioned by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally

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). The prima facie inquiry may be dispensed with

in this case, however, since the agency has articulated legitimate and

nondiscriminatory reasons for its conduct. See 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). To ultimately prevail, complainant must prove,

by a preponderance of the evidence, that the agency's explanation is

a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995). Here, we will

assume for the sake of argument that complainant established his prima

facie cases of discrimination.

The agency articulated legitimate, non-discriminatory reasons for its

action. Specifically, complainant was not as qualified as the selectee.

Further, all four individuals on the selection panel rated the selectee

higher than complainant based on their answers to the questions during

the interview and information derived from their resumes.

Complainant must now establish, by a preponderance of the evidence,

that the agency's articulated legitimate, non-discriminatory reasons

are pretext for discrimination. In a non-selection case, pretext may be

demonstrated by 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). Here, while complainant established that

he worked for the agency longer than complainant, he did not establish

that his qualifications were observably superior to the selectee's.

Further, while complainant established that there was a conflict of

interest between himself and one of the panel members, the AJ correctly

found that the panel member's rating of complainant did not differ

substantially from the ratings of the other three panel members, who had

no knowledge of complainant's prior protected activity. The AJ also

correctly concluded that the panel member had no influence on the other

panel members' decisions, and had his scores been eliminated the selectee

still would have been ranked the highest. Additionally, complainant

asserts that the panel purposely ignored the fact that the selectee lied

on his resume about his work experience and past D.U.I. convictions

in order to avoid selecting complainant for the position. The record

reflects that the agency was not aware of the selectee's exaggerated

resume and D.U.I. convictions until the investigation into this EEO

complaint, as they did not appear in the agency's background check.

Complainant failed to establish that discriminatory animus more likely

than not played a role in the agency's decisions. Therefore, we find

that complainant failed to establish that the agency's legitimate,

non-discriminatory reasons were pretext for discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the agency's

final decision, because a preponderance of the evidence of record does

not establish that discrimination occurred as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

August 3, 2009

Date

1 We note that, under the statutes and regulations enforced by the EEOC,

the term "Hispanic" denotes a national origin rather than a race.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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