Richard Fitzgerald, Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionMar 8, 2000
01a00216 (E.E.O.C. Mar. 8, 2000)

01a00216

03-08-2000

Richard Fitzgerald, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.


Richard Fitzgerald, )

Complainant, )

)

v. ) Appeal No. 01A00216

) Agency No. DSS-98-027-DC-M

William S. Cohen, )

Secretary, )

Department of Defense, )

Agency. )

_______________________________ )

DECISION

The Commission finds that the agency's September 7, 1999 decision

finding that the agency did not discriminate against complainant based

on complainant's race (White), national origin (Polish-American), sex

(male), and age (over 40), was proper.<1> In the accepted issue in the

complaint, complainant alleged that he was discriminated against when

he was not selected on May 8, 1998, for the position of Supervisory

Investigative and Security Specialist, GS-1801-13, in the Hanover Office

of the Greater DC-Baltimore Operating Location, under job announcement

number DIS-98-1783-DA. Complainant did not request a hearing.

The record indicates that as part of a reorganization the agency posted

the vacancy announcement to choose six supervisors. The evidence shows

that the candidates were interviewed by three persons, but that only two

of those interviewers made the selection decision. The two selecting

officials both provided affidavits in which they both stated that the

selection decisions were based on the candidates presentation/interview.

The evidence shows that the three interviewers ranked each candidate on

a numerical scale for various elements of the presentation/interview.

The record shows that the six selectees all had a higher average score

than complainant.

The crux of complainant's argument on appeal is that he was discriminated

against on the basis of his age. Complainant argues that he had more

experience than some or all of the selectees. The statements by the

two selecting officials make it clear, however, that prior experience

ultimately did not influence any of their selection decisions, because

the selection decisions hinged on the presentation by the candidates

during the interviews. Complainant argues that the use of business

plan presentations at the interviews was a pretext to enable selection

of younger candidates. The Commission's review of the record shows

that at the time of the selection complainant was 46 years old, and

the selectees' ages in years were: 29, 45, 43, 51, 34, and 40. One of

the selectee's was older than complainant, while one selectee was only

one year younger than complainant. While an individual may still show

discrimination even if someone in his protected class is selected for the

position in question, there are no circumstances present to suggest that

the instant agency decided to not select complainant because of his age.

The Commission also finds that four of the selectees were of the same

race as complainant and that five of the selectees were of the same sex

as complainant. The record only reveals the national origin for one of

the selectees - Hispanic. There is no persuasive evidence, however,

showing that the selecting officials expressed any animus towards

complainant on the basis of complainant's national origin or that the

agency's explanation for its selection decision was pretextual. Although

complainant may feel that the selection decision improperly emphasized

a presentation of a �business plan� rather than past accomplishments,

the Commission finds that there is no reason to show that this method

of choosing the selectees was motivated by discrimination.

Complainant does not claim or show that his presentation was superior to

any of the selectees' presentations or that he scored higher on the matrix

than any of the six ultimate selectees. The Certificate of Promotion

Eligibles does indicate that Candidate A (race - White; sex - female)

was offered the position, but declined the offer. Complainant contends,

and the record appears to indicate, that Candidate A scored lower than

complainant on the matrix. The selecting officials were not asked about

Candidate A and therefore provided no statements regarding Candidate A.

On appeal complainant provides the following explanation why Candidate

A was chosen instead of complainant:

The fact that [Candidate A] was selected regardless of her position on

the overall scoring list is unequivocal proof that [Selecting Officials

A and B] had pre-selected an �industrial security� type individual as the

complainant alleged in the initial investigation and otherwise favored a

person who is not a member of the complainant's protected class. [citation

omitted]. The complainant had reported that [Selecting Official B] had

previously stated that each OPLOC in the field who would have at least

one Integrated Team Leader who had Industrial Security experience. . . .

It appears however, that [one of the ultimate selectees] . . . was offered

the job after [Candidate A] turned it down, ensuring that the position -

which, but for the age discrimination, should have gone to complainant -

went instead to a younger person with industrial security experience.

This created an unfair advantage for anyone with Industrial Security

experience to the disadvantage of older candidates from the investigative

field, like the complainant.

The Commission finds that even if the agency did initially select

Candidate A because of her experience in industrial security, complainant

has failed to show how such a selection factor is discriminatory on the

basis of age, sex, national origin, or race. Complainant has not claimed

that the instant complaint is, or involves, a claim of disparate impact

on the basis of age.

The Commission also notes that complainant correctly indicates that the

scores by each interview panel member differed in some circumstances,

markedly, from the other panel members' scores for the same criteria

for the same candidate. Thus, Candidate 1 may have received a score of 5

(maximum) for Factor 1 from Panel Member 1, but may have received a score

of 0 (minimum) from Panel Member 2 for Factor 1. Such disparity does

not prove discrimination. Complainant has not shown that his scores were

improper on the matrix or that the Panel Members did not show consistency

in the range of scoring for each particular Panel Member.

The Commission finds that complainant has failed to show that

his non-selection was motivated by discrimination on the bases of

complainant's sex, race, national origin, or age.

The agency's decision finding no discrimination 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:

March 8, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________ Date

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.