01A11341
10-19-2000
Ralph Matthews, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Ralph Matthews v. Department of the Army
01A11341
October 19, 2001
.
Ralph Matthews,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A11341
Agency No. ACFD9512F0870
Hearing No. 370-97-2675X
DECISION
Introduction
Complainant timely initiated an appeal from the final agency decision
(FAD), dated July 6, 1999, concerning his equal employment opportunity
(EEO) complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleged he was discriminated against
on the basis of race<1> (Black), when on October 31, 1995, he was not
selected for the position of Community and Family Activities Program
Manager (Program Manager), GS-340-13, Announcement Number S-95-391,
Area I West, Uijongbu, Korea.
Issue Presented
Whether the complainant established by a preponderance of the evidence
that he was not selected for the Program Manager position due to race
discrimination.
Background
The record reveals that complainant, at the time of his application for
the position, was an Assistant Director of Community Family Activities,
GS-12, at the agency's Area IV, in Korea. Complainant filed a formal
EEO complaint with the agency on January 18, 1996, alleging that the
agency had discriminated against him as referenced above. The Program
Manager position was announced worldwide and thirty-five applicants
were ultimately referred for selection. The selecting official (SO),
a colonel, was the Commander of Area I West.
The SO (Caucasian male) formed a ranking panel composed of lieutenant
colonels, JK (Native American/Lebanese/French-Canadian)<2>, ES (race not
identified), W (Caucasian), and B ( race not identified).<3> Lieutenant
colonels W and B were not interviewed during the investigation. The panel
members individually reviewed the applications of the candidates and
scored them based on a matrix drafted by JK with the assistance of the
Commander's executive assistant.
The SO selected a candidate (RH) (Caucasian male) from out of the country
but when that individual's reporting date was delayed, the selection was
withdrawn. The SO had also selected an alternate but he decided not to
offer the position to the alternate. The SO then selected ET (Selectee)
(Caucasian male). Complainant objected to the first non selection and
received counseling up through the selection of ET. Both non selections
were considered during the investigation and in the hearing process.
The Administrative Judge's (AJ) decision as well as the accepted issue
for investigation focused on the fact that only one position was filled.
JK rated the complainant higher than RH, but rated the Selectee higher
than the complainant. JK rated the Selectee higher than the complainant
based on JK's subjective judgment that the Selectee had more professional
job related training and more experience in business operations. JK did
not know the complainant's race. The complainant was not in JK's top
seven choices. JK states that he believed the SO chose the Selectee
because he was a known professional in the community operations, and
due to his knowledge and experience in business operations.
ES rated RH higher than the complainant, but rated the complainant
higher than the Selectee. ES rated the complainant higher than the
Selectee because of his formal education and his experience as a
Director of Personnel and Community Activities. ES rated applicants
based on education, training, and experience. ES testified that his
ratings were subjective. He came up with a ranking system on his own.
ES had met the Selectee but did not have any specific dealings with him.
ES was aware of the Selectee's work on a business plan for the SO.
ES did not know the complainant's race.
The panel members did not meet as a group, did not discuss their
respective scores with each other, and reached different ratings for the
candidates. This process was casual, unstructured, and highly subjective.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a Notice of summary judgment,
and based on the record before him, issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant established a prima facie case of
race discrimination. Specifically, the AJ found that complainant
was a Black applicant who applied for the advertised position and was
qualified because he was referred for consideration. The AJ also found
that the complainant was not selected and that a non-Black candidate
was ultimately selected.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the SO
initially selected the candidate with the highest collective rating.
When this candidate failed to report, the SO selected Selectee<4>.
This selection was based on his score and the work that Selectee had
performed in Area I. ES testified that Selectee developed a business
plan for the SO, that was a good, general, overall plan, which was a
significant initiative for Korea. ES testified that the Selectee's
plan was long overdue and was worth the effort. ES testified that he
believed that the SO selected the Selectee, and not the complainant,
because the SO knew that the Selectee had developed the business plan,
knew the quality of the product on the business plan, and that SO had
worked with the Selectee on the plan. The plan related to the work to
be performed by the future incumbent of the position.
The SO testified that he had requested help from Eight US Army to turn
around long term financial and service problems in the community and
family activities in Area I. The SO testified that the Selectee came
in and crafted an Area I Business Plan which dramatically turned the
operation around in a positive way. SO testified that the plan became a
model plan and was well received. The SO testified that the Selectee's
and the complainant's experience was extensive. The SO testified that
he knew the Selectee professionally, and did not know the complainant
personally, but had seen him at a couple of meetings.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that the
complainant failed to produce any evidence of pretext. There is no
evidence that the SO considered the race of the complainant in the
selection process.<5> The AJ found that although the complainant argued
that he was more qualified than the Selectee, the record failed to produce
any evidence in support of this allegation. The complainant testified
that the Selectee did have considerable experience in club management.
The FAD implemented the AJ's decision.
Contention on Appeal
Complainant contends that the AJ found that the complainant had
established a prima facie case and his hearing request should not have
been denied.
Analysis and Findings
At the conclusion of the investigation, complainant requested a
hearing before an AJ. Finding there were no material facts in dispute,
the AJ issued findings and conclusions without a hearing, finding no
discrimination. Complainant submitted on appeal that since he presented
a prima facie case he should have had a hearing.
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact. This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non- moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
Establishing a prima facie case does not assure a complainant a hearing
before an AJ. A prima facie case is not a finding of discrimination; it
is a complainant's presentation of evidence from which a discriminatory
animus may be inferred in the absence of any legitimate explanation.
See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577-578 (1978).
In McDonnell Douglas Corp v. Green, 411 U.S. 792, 800 (1973) the United
States Supreme Court considered �the order and allocation of proof� in
an individual Title VII case. The Court held that an individual Title
VII complainant must carry the initial burden of proof by establishing a
prima facie case of discrimination. However, complainant's introduction
of evidence to establish a prima facie case does not automatically
entitle him to relief under Title VII. The effect of establishing a
prima facie case is to shift the burden to the agency to articulate
some legitimate, nondiscriminatory reason for the employment decision.
Finally, the complainant must be afforded a fair opportunity to show
that the stated reason was in fact a pretext.
A prima facie case raises an inference of discrimination only
because we presume these acts, if otherwise unexplained, are more
likely than not based on the consideration of impermissible factors.
Such an inference would arise, case law has established, only if the
complainant can show that he or she has been subjected by the employer
to unfavorable or inequitable treatment which, if unexplained by the
employer as a legitimate, nondiscriminatory act, would create a reasonable
presumption that it was motivated by discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, at 577 (1978).
In the present case complainant established a prima facie case,
thereby satisfying the first part of the McDonnell Douglas Corp order
and allocation of proof. The complainant carried his initial burden
of proof. The agency was then required to articulate some legitimate,
nondiscriminatory reason for the employment decision. The agency did
so by asserting that although complainant had qualifying experience,
the Selectee had demonstrated a level of performance in developing a
business plan for the SO and working with the SO, and that the Selectee
was otherwise qualified for the position. The complainant did not raise
material issues as to these facts. Next, the complainant must show
that the stated reason for the Selectee being chosen for the position
was in fact a pretext. The complainant did not raise genuine issues of
material fact that the complainant's qualifications for the position were
so plainly superior to the Selectee's as to require a finding of pretext.
The Commission finds that the agency has articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, the record
documents that the Selectee was qualified for the position and had worked
for the SO on the development of a business plan. The Personnel Staffing
Specialist (Black female) who worked on the vacancy announcement testified
that to her knowledge this recruitment complied with all regulatory
procedures and requirements. The articulated reasons given by the
agency for preferring the Selectee over the complainant were clear
and specific and allowed complainant a full and fair opportunity to
demonstrate pretext. Accordingly, the Commission must determine whether
the record establishes that the proffered reasons were not the true
reasons for complainant's non selection. This can be established either
directly by a showing that a discriminatory reason more likely motivated
the agency or indirectly by a showing that the proffered explanation is
unworthy of credence. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981).
Regarding the subjective nature of the selection process, we note that
the Courts have held that Title VII does not protect against errors in
judgment regarding qualifications, only against decisions motivated
by unlawful animus. Turner v. Texas Instruments, 555 F.2d 1251 (5th
Cir. 1977). An agency has the discretion to choose among equally
qualified candidates so long as the decision is not premised on an
unlawful factor such as race. Burdine, 450 U.S. at 258- 259; Mitchell
v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin College,
666 F.2d 1057, 1061 (6th Cir. 1981). When a decision to hire or promote
one person rather than another is reasonably attributable to an honest,
even though partially subjective evaluation of their qualifications,
no inference of discrimination can reasonably be drawn. Turner supra.
Here, the agency asserted that although complainant had qualifying
experience, the Selectee had demonstrated a level of performance
in developing a business plan for the SO and working with the SO.
After considering the qualifications of complainant and the Selectee,
we do not find complainant's qualifications for the position were so
plainly superior as to require a finding of pretext. Bauer v. Bailar,
647 F. 2d 1037, 1048 (10th Cir. 1981). We note that complainant failed to
present evidence that the SO's actions, which were based, on part, by his
personal observations of the Selectee, were motivated by discriminatory
animus toward complainant's race.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We discern no basis to
disturb the AJ's decision. Therefore, after a careful review of the
record and arguments and evidence not specifically addressed in this
decision, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 19, 20001
Date
1The agency's Notice of Acceptance of Discrimination Complaint, dated
February 13, 1996, also contained the basis of age discrimination.
This basis was withdrawn by the complainant who testified that he did
not consider age to be a factor.
2JK's military record reflects him as being Caucasian.
3The AJ noted that it was unclear who the remaining panel members were.
4At the time of his application, the Selectee was a Director, Food and
Beverage and Marketing, NF-05.
5At the time of the complaint there were four civilian managers,
two Blacks and two Whites, reporting directly to the SO. The SO had
selected one of the Black managers.