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.