01985664
03-15-2000
Michael P. Hendrickson, Complainant, v. Togo D. West. Jr., Secretary, Department of Veterans Affairs, Agency.
Michael P. Hendrickson v. Department of Veterans Affairs
01985664
March 15, 2000
Michael P. Hendrickson, )
Complainant, )
) Appeal No. 01985664
v. ) Agency No. 97-2024
)
Togo D. West. Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination, in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted.
Complainant claimed that the agency discriminated against him on the bases
of race (white), gender, and national origin (Irish) by not selecting him
for a GS-7 safety technician position on April 14, 1997. 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 initially 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). Proof of a prima facie case will vary depending on the facts
of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14.
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Complainant may establish a prima facie case of discrimination with
respect to his nonselection with a showing that he is a member of
a protected group, that he applied for a position for which he was
qualified, that he was not selected, and that the selectee was outside
of his protected group. Silva v. United States Postal Service, EEOC
Request No. 05931164 (May 12, 1994); Keyes v. Secretary of the Navy,
853 F.2d 1016, 1023 (1st Cir. 1988). In this case, complainant had
several years of occupational safety experience while serving in the
Air Force, but was passed over for the position in favor of an Hispanic
female applicant. This is sufficient to establish a prima facie case
of discrimination on all three bases alleged.
The selecting official stated that he chose the selectee on the basis
of her responses to seven interview questions that he asked all of the
candidates. He also stated that complainant's computer skills were
not as proficient as those of the selectee. The agency noted in its
final decision that the position was primarily clerical in nature,
and that the selectee's superior computer skills were a much more
significant factor in the selection process than was complainant's
hands-on experience in occupational safety. Thus, the reasons given by
the agency for choosing the selectee are legitimate, nondiscriminatory,
and supported by the record.
The burden now returns to complainant to show, by a preponderance
of the evidence, that these reasons are a pretext for race, sex,
or national-origin discrimination. While disbelief of the agency's
articulated reasons does not compel a finding of discrimination as
a matter of law, disbelief of the reasons put forward by the agency,
together with the elements of the prima facie case, may suffice to show
intentional discrimination. Hicks, 509 U.S. at 511; EEOC Enforcement
Guidance on St. Mary's Honor Center v. Hicks (April 12, 1994); Huerta
v. Department of the Air Force, EEOC Request No. 05930802 (April 1, 1994).
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. 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); Burdine, 450 U.S. at 259. Complainant may be able to establish
pretext, however, with a showing that his qualifications were plainly
superior to those of the selectee. Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). In this case, all four of complainant's own
witnesses stated in their affidavits that discrimination had nothing to do
with the selection, and three of those witnesses stated that the selectee
was the highest-qualified candidate, on the basis of the requirements of
the position. Exhibits (Exs.) B2, B3, B4, B5. These witnesses stated that
while complainant may have had greater knowledge of safety regulations,
the administrative aspects of the position were more important,
and in these areas, the selectee had the edge. Exs. B2, B3, B4, B6.
Moreover, complainant even admitted in his appeal statement that he
told the selecting official that he had not used the computer program
that the agency was using for at least a year. We therefore find that
complainant has not shown that his qualifications were plainly superior
to those of the selectee. Likewise, he has not presented any evidence
which contradicts the statements given by the selecting official and other
management officials, or which undermines their credibility as witnesses.
After a careful review of the record, including complainant's contentions
on appeal, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final decision because the preponderance
of the evidence does not establish that discrimination occurred.
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:
March 15, 2000
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
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.