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.