01980672
01-13-2000
Porter Babers Jr., Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Porter Babers Jr. v. Department of the Air Force
01980672
January 13, 2000
Porter Babers Jr., )
Complainant, )
) Appeal No. 01980672
v. ) Agency No. AR000970554
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the bases of race (Black), and color (black), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Complainant alleges he was discriminated against when on
June 10, 1996, he was not selected for the Fuels Management Officer,
GS-301-11, position. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission affirms the FAD.
The record reveals that during the relevant time, complainant was employed
as a GS-08 Quality Assurance Specialist, at the agency's 42nd Supply
Squadron, 42nd Air Base Wing, Air Force Base (AFB), Alabama facility.
Complainant alleged that he applied for the position and was referred
for selection consideration with two other candidates (both Caucasian).
Complainant maintains that the selecting official (SO) failed to
utilize the agency's competitive merit promotion program to fill
the position, and instead used the Veteran's Readjustment Act (VRA)
so that the Selectee could be chosen for the position. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint on October 15, 1996. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD did not determine whether complainant established a prima facie
case of race/color discrimination. Notwithstanding, the FAD found that
the agency had provided legitimate, nondiscriminatory reasons for its
selection, namely that the Selectee was found to better qualified for
the position than complainant. The record indicates that the SO made his
selection based on his knowledge of each candidate's background and the
information in their Standard Forms 171. The FAD indicated that the SO
was looking for a person who had strong leadership capability, technical
expertise, and skill with writing and speaking. According to the FAD,
the Selectee was strong in all of these areas. The FAD also maintained
that even if the Selectee had been preselected, discriminatory animus was
not involved. Moreover, the FAD concluded that the SO's use of the VRA
was directed toward finding qualified candidates for the position and not
for the purpose of identifying individuals of a specific race or color.
On appeal, complainant contends that the agency failed to consider a
number of his arguments, namely that he had more experience than the
Selectee; outside factors beyond the requirements for the position
were considered; and that Selectee was preselected for the position.
The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission finds
that complainant established a prima facie case of race/color
discrimination. Notwithstanding, we find that the agency provided
legitimate, nondiscriminatory reasons for its selection, namely that it
was felt that the Selectee was better qualified for the position. We also
find that complainant failed to present evidence that more likely than
not, the agency's articulated reasons for its actions were a pretext
for discrimination. In reaching this conclusion, we note that the SO
revealed that he had prior experience working with the Selectee, the
Selectee was highly recommended by three sources, and the Selectee had
impressive credentials. The SO stated that he believed that complainant
would have performed satisfactorily, but thought that the Selectee
would do an exceptional job. Further, the record reveals that a former
supervisor of complainant's stated that he thought complainant was a "good
operations man" but was not the best speaker or writer. Therefore, the
Commission finds that complainant failed to show that the agency's reasons
are a pretext to mask discrimination. Specifically, complainant failed
to show that he was better qualified than the Selectee. Moreover, he
failed to proffer any evidence that contradicts the agency's reasoning
for its selection. We find that complainant and the Selectee were
qualified for the position but we have long held that an employer has the
discretion to choose from among candidates with different but equally
desirable qualifications as long as it is not based upon any unlawful
motivation. Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981); Canham v. Oberlin College, 666 F.2d 1057 (6th Cir. 1981). It
should also be noted that the employer has greater discretion choosing
management level employees. Wrenn v. Gould, 808 F.2d 493 (6th Cir. 1987);
Webb v. NASA, EEOC Request NO. 01932764 (June 20, 1994).
With regard to the issue of preselection, we note that while evidence
of preselection may operate to discredit the agency's explanation for
its employment decision, preselection per se does not violate Title VII
when it is based on the qualifications of the preselected individual and
not on a basis prohibited by Title VII. See Malley v. U.S. Department of
Housing and Urban Development, EEOC Request No. 01973271 (August 5, 1999).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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:
January 13, 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
__________________________
Equal Employment Assistant
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.