01985916
05-18-2000
Mitchell T. Crouther, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture (Farm Service Agency), Agency.
Mitchell T. Crouther v. Department of Agriculture
01985916
May 18, 2000
Mitchell T. Crouther, )
Complainant, )
)
v. ) Appeal No. 01985916
) Agency No. 95-0905
Daniel R. Glickman, )
Secretary, )
Department of Agriculture (Farm Service Agency), )
Agency. )
)
DECISION
On July 27, 1998, Mitchell T. Crouther (hereinafter referred to as
complainant) filed a timely appeal from the July 7, 1998, final decision
of the Department of Agriculture (Farm Service Agency) (hereinafter
referred to as the agency) 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. The appeal is timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the bases of race (black) and reprisal when he was not selected
for the position of Program Manager, GS-14, Jackson, Mississippi, in
June 1995.
Complainant contacted an EEO counselor on June 15 and filed his formal
complaint on August 24, 1995, when he was not among those referred by
the interview panel to the selecting official (white) (SO). On July
7, 1998, the agency issued a final agency decision (FAD), finding no
discrimination.<2> Complainant has filed the instant appeal without
comment.
In 1995, the agency posted Vacancy Announcement No. RM-95-02 for the
position of Program Manager in the Jackson, Mississippi, Regional Service
Office.<3> The record shows that six white and one black (complainant)
candidates were qualified for the position at GS-14 and were among those
interviewed by a five-member management-level panel (3 whites, 1 black,
1 American Indian). The panel forwarded the names of three candidates
(white) to the SO, who chose the selectees for Jackson and Spokane
from among the three names. The record shows that each panel member
rated each candidate as high (H), medium (M), or low (L), on his/her
response to five questions. Complainant's scores in comparison to
the selectee show that the selectee received 22 Hs, 3 Ms, and no Ls,
while complainant received one H, 16 Ms, and 8 Ls.<4> In support of
the interview scores, the record also contains a detailed statement from
each panel member explaining his/her reasons for the assessment of the
selectees and complainant.
Complainant contended that he was not referred and selected for the
position based on his race and prior EEO activity, noting that he was the
only black branch chief that applied and that the agency discriminated
against him when he was not selected for a position in 1992. He asserted,
without specificity, that he was more qualified and had more varied
experience than the selectee for Jackson. Also, he questioned whether
the processing of two positions together was proper, contending that
separation of the application procedure would have afforded him a better
chance for referral and selection.
In general, complainant's claims alleging disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). Initially, for
complainant to prevail, s/he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Following this established order of analysis is
not always necessary where the agency articulates an explanation for
its actions. In such cases, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis--the ultimate question of
whether complainant has shown by a preponderance of the evidence that the
agency's action was motivated by discrimination. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
It is complainant's burden to demonstrate by a preponderance of the
evidence that the agency's action was based on prohibited considerations
of discrimination, that is, its articulated reason for its action
was not its true reason but a sham or pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that the agency articulated legitimate, nondiscriminatory reasons
for its selection decision. The panel's recommendation was based on
its evaluation of the candidates and is supported by the record. The
explanations from the panel members show that the panel's recommendations
were based on a justifiable assessment and evaluation of each applicant,
utilizing the same criteria and methodology in each case.
The burden now returns to complainant to demonstrate that the agency's
articulated reasons for its selection decision were not accurate or based
on discriminatory factors. Complainant's summary assertions of superior
credentials and disagreement with the criticisms of the panel members do
not undermine the agency's explanations nor demonstrate that the agency's
reasons were based on prohibited factors. Likewise, that he was the
only black applicant and had experienced prior discrimination does not,
without more, demonstrate that the agency's reasons were pretextual.
Further, complainant has not shown that he was, in fact, more qualified
nor does he show that the processing of two identical positions together
limited his selection opportunities. Based on our review of the record,
we find that complainant has not shown that the agency's reasons for
its actions were pretextual. We find therefore that the agency did not
discriminate against complainant based on race.
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) he engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) he
was subsequently disadvantaged by an adverse action; and, (4) there
is a causal link between the protected activity and adverse action.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., supra;
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988). The causal connection may be shown by
evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive is
inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Even if complainant established a prima facie case, as stated, above, the
agency articulated legitimate, nondiscriminatory reasons for its actions
that complainant did not demonstrate were pretextual. Therefore, we
find that the agency did not discriminate against complainant in reprisal.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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:
05-18-00
Date Carlton 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ __________________________
1On 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.
2The record does not contain documentation showing that complainant was
advised of his right to request a hearing before an EEOC Administrative
Judge (AJ) or an immediate FAD. Nevertheless, from complainant's
remarks in the record, it appears that he was given a copy of the Report
of Investigation. Further, complainant engaged in prior EEO activity,
including a hearing before an AJ, and was familiar with the EEO process.
See EEOC Appeal No. 01970428 (March 12, 1999). For these reasons and
because complainant did not assert otherwise, we infer that he was
afforded his right to a hearing or a FAD. The agency is reminded to
include evidence demonstrating its compliance with 64 Fed. Reg. 37,656
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.108(f)).
3At the same time, the agency posted Vacancy Announcement RM-95-03 for
the same position in Spokane, Washington. Although some applicants only
applied for one vacancy, both slots were processed together.
4The selectee for the Spokane position also compares unfavorably with
complainant's ratings, scoring 21 Hs, 4 Ms, and no Ls. Assigning three
points for each H, two for each M, and one for each L, the scoring
reveals the following comparison:
Complainant 43 points
Selectee (Jackson) 72 points
Selectee (Spokane) 69 points