01A40009
05-26-2004
Ramiro Tellez, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Ramiro Tellez v. Department of the Army
01A40009
05-26-04
.
Ramiro Tellez,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A40009
Agency Nos. AVBWFO0112B0530 & AVBWFO0105B0240
Hearing No. 350-A1-8376X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
On October 26, 2000, complainant filed a complaint in which he claimed
that the agency discriminated against him on the bases of national origin
(Hispanic) and age (D.O.B. 11/12/41), when:
(1A) On July 24, 2000, the agency did not select him for the position
of Supervisory General Engineer, GS-0801-14, in the Program Management
and Test Division, Sensors and Space Branch (MT-MS), White Sands
Missile Range.
(1B) On July 24, 2000, the agency did not select him for the position
of Supervisory General Engineer, GS-0801-14, in the Program Management
and Test Division, Technical Missile Branch (MT-MT), White Sands
Missile Range.
On August 1, 2001, complainant filed a second complaint in which he
claimed that the agency discriminated against him on the bases of national
origin, age, and reprisal for having filed the first complaint when:
(2) On April 2, 2001, the agency did not select him for the position
of Supervisory General Engineer, GS-0801-14, in the Systems Test and
Assessment Division, Material Test Directorate, White Sands Missile
Range.
Complainant identified the selecting officials for positions 1A and 1B
(SO1) and for position 2 (SO2) as being responsible for the alleged
discriminatory nonselections. The agency investigated each complaint
separately and thereafter referred them to an EEOC Administrative Judge
(AJ) for a consolidated hearing. The AJ held the requested hearing
via telephone and issued a bench decision finding no discrimination.
The agency subsequently implemented the AJ's decision in its final order.
It is from this order that complainant now appeals.
The AJ found that complainant established a prima facie case of
discrimination or reprisal in all three nonselections, and that the
agency articulated a legitimate and nondiscriminatory reason for each
nonselection. As to the bases of national origin and reprisal, the
AJ concluded that the evidence did not support a finding on either of
these bases. As to age discrimination, the AJ noted:
[Statistics presented by complainant] suggest and support the
complainant's claim that age seems to have been some kind of a factor
in these promotion decisions. The problem is, though, that, again, it
has to do with a question of proof. And while there is some suggestion
that age is being considered in promotion actions * * * the preponderant
evidence is just simply insufficient to convince me that there is really
a systemic problem in that regard.
AJ's Bench Decision, pp. 11-12. The AJ ultimately concluded that
the record did not support complainant's claims of discrimination on
any basis. AJ's Bench Decision, p. 15.
On appeal, complainant initially argues that the AJ limited his witnesses
to only three, from a list of ten proposed witnesses. Second, complainant
argues that the AJ erred in allowing the agency to waive the testimony of
SO1 and SO2 without giving him a chance to object to the waiver motion.
Third, complainant argues that the AJ erred in not accepting the testimony
of one of his witnesses. Fourth, complainant argues that the AJ erred
in not granting his request for an in-person hearing, as opposed to
a telephonic hearing. Fifth, complainant appears to be arguing that
one witness who testified by telephone did not understand the questions
being put to her, and that this adversely impacted complainant's ability
to present his case. Sixth, complainant argues that the AJ overruled
complainant's objections but sustained objections made by the agency's
representative. Finally, complainant argues that the hearing lacked
order and direction from the AJ.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. An employer
has the discretion to choose among equally qualified candidates, and
should not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259 (1981); Canham v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981). This is especially true when filling management
level or specialized positions, as was the case in the instant appeal.
Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). Complainant therefore
has a considerable burden in proving that the agency's articulated reason
for a particular nonselection was a pretext for discrimination or
reprisal.
One way to do so would be for complainant to show that his qualifications
for the positions in question are plainly superior to those of the
selectees. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
The record clearly shows that the assessments made by SO1 and SO2 of the
applicants' relative qualifications are consistent with the candidates'
application documents. While complainant's application was strong in
certain areas, the selectees presented strengths in other areas that the
selecting officials considered important and desirable for the positions.
Complainant has therefore not shown that his qualifications for any of
the three positions were so plainly superior to the qualifications of
the selectees as to compel a finding of pretext.
Complainant also attempted to prove pretext by challenging what appeared
to him to be the AJ's apparent discounting of the hearing testimony
offered by one of his witnesses. This witness testified that SO2
pressured him to consider the agency's policy of, �bringing in younger
blood� in making his own personnel selections. The AJ noted that this
witness did, �have an ax to grind� with the agency. The AJ felt compelled
to consider this factor in assessing whether SO2 entertained an unlawful
motive. See AJ's Bench Decision, p. 14. The AJ noted that three agency
witnesses had testified that the phrase, �bringing in younger blood�
referred to the need to bring in younger employees at the entry level
in order to prevent the loss of institutional memory, not to prevent
highly qualified older employees from moving into leadership positions.
We find no indications that the AJ's findings regarding this witness were
against the weight of the evidence or otherwise constituted an abuse of
discretion on the AJ's part.
Complainant's remaining contentions on appeal, in which he challenges the
AJ's conduct of the hearing, are without merit. AJ's have the authority
to regulate the conduct of the hearing, limit the number of witnesses,
and decide what evidence is admissible. See 29 C.F.R. � 1614.109(e).
While complainant may disagree with the AJ's evidentiary rulings, he has
not shown that the AJ abused his discretion in making those rulings.
See Tompkins v. Department of the Air Force, EEOC Appeal No. 01920739
(May 20, 1993).
Complainant has not presented any other evidence sufficient to show that
the agency's articulated reasons for not selecting him for any of the
positions were pretexts designed to hide unlawful considerations of his
national origin, age, or previous EEO activity on the part of SO1 or SO2.
We therefore discern no basis to disturb the AJ's decision.
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 final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
_____05-26-04_____________
Date