Michael R. Ward, Appellant,v.William E. Kennard, Chairman, Federal Communications Commission, Agency.

Equal Employment Opportunity CommissionOct 1, 1999
01976398 (E.E.O.C. Oct. 1, 1999)

01976398

10-01-1999

Michael R. Ward, Appellant, v. William E. Kennard, Chairman, Federal Communications Commission, Agency.


Michael R. Ward, )

Appellant, )

) Appeal No. 01976398

v. ) Agency No. FCC-95-1

)

William E. Kennard, )

Chairman, )

Federal Communications Commission, )

Agency. )

)

)

DECISION

Appellant timely filed an appeal with the Commission from a final

decision of the agency concerning his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. � 2000e et seq; and the Age Discrimination in Employment Act

of 1967, 29 U.S.C. � 621 et seq. The appeal is accepted in accordance

with EEOC Order No. 960, as amended. See 29 C.F.R. � 1614.402(a).

The issue before us is whether appellant established, by a preponderance

of the evidence, that the agency discriminated against him on the

bases of gender and age (54) by not selecting him for a position as a

writer-editor, GS-1082-13, in its public affairs office.<1> Between

July 11 and August 12, 1994, the agency advertised the position for

which appellant applied, but was not selected. The selectee was

a younger female. Appellant thereafter filed the instant complaint.

The agency investigated the complaint and issued a final decision of no

discrimination. On appeal, appellant contests the agency's decision on

its merits.

In its response, the agency states that appellant was not selected

because he was not among the candidates ranked �best qualified� by a

three-member review panel whose job was to screen the applications.

The agency stated that only those candidates who the panel ranked as

�best qualified� were placed on the merit promotion list and referred

to the selecting official for an interview. Response brief, pp. 9-10.

The selectee's name appears on the merit promotion list, which the

personnel officer issued on September 28, 1994. Exhibit (Ex.) 15, p. 4.

The selecting official signed the list on October 21, 1994, and put an

asterisk next to the selectee's name, indicating that she was chosen.

The deputy director of the public affairs office testified that all

six individuals on the merit promotion list were interviewed by the

selecting official. Ex. 8, p. 15.

Appellant's name appeared on a list entitled, �non-competitive

candidates.�<2> Ex. 15, p. 6. This list was signed by the selecting

official on November 18, 1994. Beneath the selecting official's signature

is the typewritten notion, �Certificate returned unused. Position filled

using GS-13 merit promotion list.� A worksheet from the rating panel

indicates that all three panelists rated appellant as highly qualified for

the position. Ex. 17, p. 1. The chief of personnel services testified

that appellant was referred to the selecting official and was not rated

and ranked. Ex. 10, p. 18. She also indicated that appellant was not

interviewed because he was not on listed on the merit promotion list,

and that there was no requirement that the selecting official interview

candidates from the non-competitive list. Ex. 10, pp. 18-21.

To prevail in a disparate treatment claim such as this, appellant must

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

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Although this

test developed in the context of Title VII, it also applies to claims

brought under the ADEA, except that appellant must prove that his age

was the determining factor in the agency's action. Hazen Paper Company

v. Biggins, 507 U.S. 604, 610 (1993); Raby v. Department of the Treasury,

EEOC Request No. 05960549 (August 20, 1998).

Appellant 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. In this case, appellant established a prima

facie case on the bases of gender and age in that he applied for the

writer-editor position, but was nonselected in favor of a less-experienced

female candidate.

Once the prima facie case is established, the burden 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). The agency's reason for not selecting appellant is that his name

did not appear on the merit promotion list. We find that this reason

is legitimate, nondiscriminatory, and fully supported by the record.

To ultimately prevail, appellant must prove, by a preponderance of

the evidence, that the agency's explanation for not selecting him is

pretext designed to hide a discriminatory motivation on the part of the

responsible officials. 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).

Selecting officials have broad discretion to choose from among

equally-qualified candidates competing for the same position, as long as

the decision is not based on unlawful factors. Jenkins v. Department

of Interior, EEOC Request No. 05940284 (March 3, 1995). Appellant

may therefore be able to establish pretext 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). A review

of the applications of appellant and the selectee indicate that their

experience as public affairs specialists are comparable in that both had

served capably at the GS-12 level. Exs. 16, 17. When asked whether he

knew of anything that would lead an impartial fact-finder to conclude

that the agency's reason for choosing the selectee was a pretext for

discrimination, appellant replied, �I can see no reason other than age

[as the reason that (sic)] the selectee was chosen instead of me.�

Ex. 11, p. 23. He admitted, however, that he could not comment about

the selectee's qualifications. Ex. 11, p. 38. We therefore find that

appellant's qualifications were not so plainly superior to those of

the selectee that an inference of pretext must necessarily be drawn.

We will now address appellant's remaining contentions on appeal.

Appellant initially argues that the agency's personnel and public

affairs offices entered into a �collusive scheme to deny appellant a

fair opportunity for employment and to grant preference to a desired

candidate.� Appeal brief, pp. 6-7. As previously noted, the selecting

official was under no obligation to interview from a particular list of

qualified candidates. While it is true that the agency may have erred

in placing appellant on the non-competitive list, the fact remains that

he would have had to be ranked as best-qualified to be referred for

an interview. The record plainly shows that the rating panel ranked

him �highly-qualified,� not �best-qualified.� As for his claim that

the selectee was granted preferential treatment, the selectee testified

that she did not know anyone at the agency before she was interviewed.

Ex. 18, pp. 9, 13. Appellant has not presented any evidence, beyond

his own statements, which supports his claim of collusion.

Appellant next argues that the rating panel's use of subjective criteria,

�entitled him to the benefit of an inference of discrimination.� Appeal

brief, pp. 7-8. The use of subjective criteria is not discriminatory per

se, but may be indicative of pretext, and therefore should be scrutinized

more closely. White v. Department of the Army, EEOC Request No. 05930278

(February 25, 1994). The position in question was a speech-writer

position that required a great deal of independent discretion, in

that the incumbent was responsible for writing speeches for top agency

officials, and for representing the agency before the public. Ex. 5,

p. 56. The deputy director for the public affairs office testified as

to the difficulty of filling the position and the importance of having

the right person for the job. Ex. 8, p. 22. We therefore find nothing

illegal or inappropriate about the panelists' reliance on subjective

criteria to evaluate candidates for this position.

Appellant also contends that one of the panelists adversely considered

his status as a military veteran in rating him. As previously noted,

all three panelists rated appellant as highly qualified for the position.

One of the panelists put the word �military� beneath the box marked

highly qualified. Ex. 17, p. 1. Although appellant characterizes this

as a negative reference, his application indicates that he served in

the Army for twenty years, and that he had extensive public affairs

experience while on active duty. Ex. 17, pp. 4, 7, 9-11. The panelist

was merely noting these facts. Moreover, status as a military veteran

is not a protected basis under Title VII or the ADEA, and appellant

has not presented any evidence that military service is a proxy for

age discrimination. Consequently, we find nothing illegal or improper

about the panelist's notation of appellant's military service. As to the

appellant's other appeal contentions, we find that they are without merit.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits =a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

10-01-99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1Appellant also

alleged that the agency discriminated against him

in connection with his nonselection at the GS-12

level. In a notice dated March 21, 1998, however,

appellant stated that, since 180 days passed

since he filed his appeal, he was going to file

a civil action regarding the GS-12 nonselection.

Accordingly, the GS-13 nonselection is the only

matter that is currently before us.

2The agency admitted that it erred in placing appellant on the

non-competitive candidates list. See response brief, fn. 28.