0120073047
07-24-2009
Robert D. Jew, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Robert D. Jew,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120073047
Agency No. ED972400
DECISION
On June 23, 2007, complainant filed an appeal from the agency's May 31,
2007 final decision concerning his equal employment opportunity (EEO)
complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether, based on the record evidence, complainant established that he
was not selected for the position he sought on two occasions, because
of the agency's discriminatory animus.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked for the agency as an EEO Specialist, GS-260-14, Equal Employment
Opportunity Group (EEOG), Office of Management (OM), at Headquarters.
On March 11, 1997, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Asian-American), age
(57) and reprisal for prior EEO activity [under Title VII]1 when:
(1) on November 12, 1996, he was not selected for the position of
Equal Employment Manager (EEM), GS-0260-15, under Vacancy Announcement
No. WA-BE-6-1867: MIC; and
(2) he was again not selected on April 2, 1997, for the same position
under Vacancy Announcement No. WA-BE-7-0758: MIC.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. On June 12, 2003, the AJ issued a Decision and Order without
a hearing pursuant to 29 C.F.R. � 1614.109(g)(3), finding that the
agency engaged in unlawful discrimination against complainant based
upon his race and his age. In reaching this conclusion, the AJ found
that complainant's qualifications were plainly superior to those of the
selectee (S3) under the second vacancy announcement. The AJ further
found that complainant's qualifications were plainly superior to those
of the selectees (S1 and S2) under the first vacancy announcement,
drawing an adverse inference from the fact that the agency was unable
to produce the application materials of S1 and S2. In so finding, the
AJ noted that the record shows that the interview process was a "sham"
and the rankings assigned by the selecting officials were "suspect,
and hence, biased." Finally, the AJ noted that the agency engaged in
a pattern of discrimination against professional level Asian-Americans.
On July 30, 2003, after receiving the parties' submissions of evidence
of damages, relief sought, attorney's fees and costs, the AJ issued a
Decision on Damages, and an Order Entering Judgment.
The agency issued a Final Action and Order on September 3, 2003.
Therein, the agency agreed with the AJ's decision regarding the finding
of a lack of evidence of a nexus between any prior EEO activity and the
non-selection at issue and that such a lack of evidence did not create
a genuine issue of material fact in support of a prima facie case
of reprisal discrimination. The agency disagreed however, with the
AJ's finding of race and age discrimination and the award of damages.
Therefore, the agency did not implement the decision and appealed that
portion of the decision to EEOC's Office of Federal Operations (OFO).
In Jew v. Department of Education, EEOC Appeal No. 07A30131 (January 24,
2005), the Commission found that the AJ erred when he concluded that
there was no genuine issue of material fact in dispute in this case.
Specifically, after a careful review of the record, we found that the
issues of whether the interview process and rankings were a sham, and
whether complainant's qualifications were plainly superior, constitute
genuine issues of material fact that required a determination by the
AJ as to which evidence was more credible. OFO vacated the agency's
September 3, 2003, Final Action and Order and remanded the matter to the
Hearings Unit. Although an AJ was assigned to the case on February 15,
2007, complainant subsequently withdrew his request for a hearing and
requested that the agency issue a decision in the case. Accordingly,
the AJ cancelled the hearing, and in accordance with 29 C.F.R. � 1614.110,
the agency issued a Final Agency Decision (FAD).
The FAD initially found that complainant established a prima facie case
of race discrimination, but that he did not establish a prima facie case
of reprisal discrimination. The FAD noted that complainant's prior
employment in the EEO Office is insufficient to constitute prior EEO
activity. The FAD found that complainant failed to present evidence of
a nexus between any prior EEO activity and the non-selection at issue,
and thus did not prevail in presenting evidence of a prima facie case
of reprisal discrimination.
The FAD then found that regarding the second vacancy announcement,
complainant alleged that his non-selection was based on his statements
to the selecting officials that he was going to file an EEO complaint
regarding the first non-selection. There were two selecting officials,
SO1 and SO2 (who were also part of a three-member panel of individuals
who conducted the interviews).2 SO1 indicated that she could not recall
whether complainant made any statements to her regarding his intentions to
file an EEO complaint. The FAD found that as complainant's assertion that
he informed the selecting officials of his intentions is not rebutted,
it is held that the agency was aware of his protected activity. The FAD
found that because he was not selected for the position of EEM a short
time after making the statements, complainant has established a prima
facie of reprisal discrimination with regard to his second non-selection
for the position of EEM.
Addressing the basis of age discrimination, the FAD found that
complainant established a prima facie case. The FAD then found that
the agency articulated legitimate, nondiscriminatory reasons for the
non-selections. Specifically, on July 15, 1996, the agency issued the
first Vacancy Announcement No. WA-BE-1867: MIC, Equal Employment Manager,
GS-260-15. Complainant submitted his application before the closing date.
He was included on both the agency's Merit Promotion and Placement Plan
Certificate of Eligibles (status candidates) and the Office of Personnel
Management's (OPM) Certificate of Eligibles (non-status candidates).
The agency's Certificate identified ten (10) eligibles alphabetically
by last name, including the non-status candidates certified for
selection by OPM. On OPM's Certificate, complainant was accorded a
Tentative Veteran Preference, and was the first certified candidate.
In September of 1996, the agency interviewed all candidates, including
complainant. The interview panel interviewed, rated, and ranked all ten
(10) candidates. Complainant was ranked eighth, and the agency offered
the EEM position to two individuals (S1 and S2), not in complainant's
protected groups. Both declined to accept the position, and therefore,
the announcement was cancelled.
The FAD found that thereafter, the agency re-advertised the position
under the second Vacancy Announcement No. WA-BE-7-0758: MIC. Complainant
submitted his application materials for the second Vacancy Announcement
before the closing date. Ten (10) candidates, including complainant,
were identified on the agency's Merit Promotion and Placement Plan
Certificate of Eligibles. A certificate of Eligibles for Noncompetitive
Action identifying one (1) candidate was also generated. The agency
interviewed all the candidates on the second Certificate of Eligibles,
except for those who were previously interviewed for the position under
the first Vacancy Announcement. The same interview questions used for
the first Vacancy Announcement were asked of the interviewees for the
second Vacancy Announcement. Of the eleven (11) certified eligible
candidates, the selectee (S3) was ranked first with a composite score
of 83. Complainant was ranked last with a score of 46.6.
The FAD found that the agency denied complainant's allegations of
discrimination and stated that it selected the best qualified candidates
to fill the EEM position. The agency stated that it determined that
those candidates who earned the highest ranking from the agency's
interview panel were the best qualified candidates to fill the EEM
position. According to the rankings generated by the interview panel,
complainant was not among the most highly rated and ranked candidates as
he was ranked either last or next to the last. The agency also asserts
that each selectee's experience is more applicable and relevant to the
particular duties of the position, and that complainant's experience is
of a different level and type than required to fill the position.
The FAD next noted that complainant makes two arguments in an attempt
to establish pretext. First, complainant points out that the agency's
decision not to select an Asian-American for the position is supported
by the fact that other Asian-Americans have also had trouble obtaining
management positions at the agency. Complainant asserts that the
selectees for the position in question have never been Asian, and
"just by deduction", and after having co-managed the EEOG for several
years, he believes his race had to be the reason for his non-selection.
Complainant's second argument centers on comparative qualifications.
He points to his qualifications as being superior to those of S3.
Complainant was the agency's Deputy Director of the EEO Staff for a period
of eleven (11) years. During his tenure he was responsible in large
part for all aspects of the agency's EEO program, and provided policy,
technical, and general guidance to senior management. Complainant asserts
that his application materials, including narratives addressing each KSA
with specificity, demonstrate qualitatively better experience than S3.
He also points out that his application materials demonstrate the overall
quality of his cabinet-level experience at the agency.
The FAD found that complainant's statistical evidence is not persuasive
evidence that in the instances at hand, discrimination was the reason he
was not selected. Additionally, the FAD noted the following concerning
complainant and S3: Complainant was the agency's Deputy Director of the
EEO staff for a period of eleven (11) years, and during his tenure,
he was responsible in large part for all aspects of the agency's
EEO program, and provided policy, technical, and general guidance
to senior management. S3 on the other hand, demonstrated impressive
experience initiating changes within an organization, while complainant's
experience in this regard was limited. Complainant had twenty-two
(22) years of EEO experience, compared to S3's eighteen (18) years.
Complainant's EEO experience was in one office and in one position,
while S3's experience was more varied. S3's performance ratings
were superior to those of complainant. Based on the above, the FAD
concluded that a close look at the comparative qualifications would not
lead a reasonable person, exercising impartial judgment, to conclude that
complainant's qualifications were of such weight or significance that the
selecting official would have selected him over S3. The FAD concluded
that complainant did not prove, by a preponderance of the evidence,
that the challenged actions were motivated by discriminatory animus.
CONTENTIONS ON APPEAL
Complainant submitted a timely brief in support of the appeal, dated
August 22, 2007.3 On appeal, complainant, through counsel, contends that
in finding the agency's articulated basis for their hiring decision as
being legitimate, the agency failed to take into account the "missing
evidence" (the missing applications of the applicants) which prevented
complainant from challenging the agency's proffer. Further, complainant
contends that the fact that the agency failed to maintain these records
after being placed on notice in December of 1996 has created an adverse
inference that the agency has acted in bad faith. Complainant states
"Here, the evidence is clear that the agency has willfully failed
to produce, lost, misplaced, or destroyed the requested evidence, and
therefore, the Appellant, was and is entitled to a presumption of pretext.
It becomes problematic for the Agency when the only application maintain
is that of the Appellant." Next, complainant contends that the record
supports his claims.
In reply, the agency maintains that the analysis, findings and
conclusions as put forth in its FAD, are correct. The agency notes
that complainant's primary contention on appeal is that he is "entitled
to a presumption of pretext" because the agency was unable to produce
complete application materials for S1 and S2, who were offered, and
declined, employment under the first vacancy announcement. The agency
asserts that complainant fails to give any credence to the fact that the
position at issue was not filled under the first vacancy announcement,
but instead, was filled under the second vacancy announcement for which
the agency has produced all relevant application materials. The agency
contends that complainant has not provided any evidence of pretext,
and asks the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
The Commission first addresses complainant's argument that sanctions are
in order for the agency's failure to produce the applications of the
selectees under the first vacancy announcement. Federal regulations
require a federal agency to maintain all records relevant to an EEO
complaint until after final resolution of that complaint. General Services
Administration, Federal Property Management Regulations, 101.11.4,
General Records Schedule I, Item 26. This Commission's regulations
echo that requirement. 29 C.F.R. � 1602.14 (a) makes it clear that in
the case of a contested selection decision, the agency shall maintain
the application forms for the aggrieved party and all other candidates
for the same position. The agency here plainly failed to meet its duty
to maintain documents critical to this case. This failure compels the
application of an adverse inference that if the relevant information
had been provided it would have been favorable to the appellant and
unfavorable to the agency. Insurance Corp. of Ireland v. Compagnie des
Bauxites, 456 U.S. 694, 705 (1982); Capaci v, Katz & Besthoff, Inc.,
711 F.2d 647, 611, n. 7 (5th Cir. 1983, cert. denied, 466 U.S. 927
(1984); Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987);
Brown v. Department of the Treasury, EEOC Appeal No. 01890646 (May
15, 1989). To do otherwise would encourage federal agencies to purge
records they are legally obligated to maintain in order to defeat an
EEO complainant's case.
Thus, we agree that sanctions are in order. Specifically, we shall
assume that the applications of the individuals selected under the
first vacancy announcement showed that they were less qualified for the
position than complainant. However, as the Commission noted in EEOC
Appeal No. 07A30131, this record contains genuine issues of material fact
in dispute. Specifically, the issues of whether the interview process
and rankings were a sham, and whether complainant's qualifications
were plainly superior, constitute genuine issues of material fact that
required a determination by an AJ as to which evidence is more credible.
As complainant withdrew his request for a hearing however, we do not have
the benefit of an AJ's credibility findings after a hearing; therefore,
we can only evaluate the facts based on the weight of the evidence
presented to us.
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In this case, assuming complainant can establish a prima facie case
of discrimination on the alleged bases, the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
as to the first vacancy announcement, complainant was the first candidate
on OPM's Certificate. In September of 1996, the agency interviewed all
candidates, including complainant. The interview panel interviewed,
rated, and ranked all ten (10) candidates. The agency offered the EEM
position to two individuals, not in complainant's protected groups,
both of whom ultimately declined to accept the position. SO1 stated
that because she and the other two panelists spent a great deal of time
developing standard interview questions for the candidates, they "very
much relied on those [resulting] point scores." The agency indicated
that complainant was ranked 8th based on his interview. An interviewer
testified (upon reviewing his notes which are contained in the record)
that complainant's responses during the interview were not as "focused"
as he had expected or wanted. The same interviewer further explained
why complainant was not selected, as follows: A recent EEO Report
(which grew out of an EEO Task Force on which the interviewer served)
evaluating the agency's EEO program, concluded that the agency's EEO
program was deficient in meeting proposed objectives. Consequently, while
he believed complainant certainly had broad EEO experience, he was still
a part of the old regime, and felt that the office would best be served
by hiring someone from the outside as opposed to someone from the inside.
The record reveals that in contrast to complainant who already worked
for the agency's EEO office, at the time of selection, S1 was employed
with the Executive Office of the President, and S2 was employed with
the National Archives. Therefore, even drawing the adverse inference
that complainant's application, if produced, would have reflected that
complainant was more qualified than S1 or S2, the agency has articulated
legitimate, nondiscriminatory reasons for its actions, and this record
does not indicate by a preponderance of the evidence, that complainant
was not selected because of his membership in a protected group.
As to the second vacancy announcement, the agency articulated a
legitimate, nondiscriminatory explanation, namely, that out of the eleven
(11) certified eligible candidates, the selectee (S3), who was employed
as the Chief of Complaints Processing Branch for the U.S. Marshall's
Service at the time in question, was ranked first with a composite score
of 83 based on his responses to the interview questions. Complainant was
ranked last with a score of 46.6 based on his responses. The selecting
officials articulated that being a Director of the EEO group was "neither
an advantage nor disadvantage," and that while complainant had been Deputy
Director of the agency EEO staff for a long period of time, he had not
"made the impact that people wanted him to make." In contrast, S3 had
made an impact by greatly reducing his department's backlog of EEO cases.
The Commission is not persuaded, by a preponderance of the evidence
in this record, that the agency's stated reasons are mere pretexts for
discriminatory animus.
The agency has broad discretion to set policies and carry out personnel
decisions, 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; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant
may be able to establish pretext with a showing that the disparities
in qualifications between him and the selectee are "of such weight
and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the [selectee] over [him] for
the job in question." Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88
Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154
(Jan. 22, 2007). Here, complainant has failed to make this showing,
particularly given that he was unable to refute the interviewers'
assertion that they were not merely looking for the most qualified
person, but also that they wished to place an individual in the position
who represented change, as opposed to the old regime which had a poor
reputation at that time.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
_______07/24/09___________
Date
1 During the discovery phase of the hearing process, complainant abandoned
his claim of sex discrimination, which he had initially raised.
2 SO2 retired from Federal service and did not provide testimony in
this case.
3 Complainant requested an extension of time to file a brief, which was
granted until August 22, 2007.
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0120073047
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120073047