0120073176
02-13-2009
Robert D. Ragland, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Robert D. Ragland,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120073176
Agency No. FSIS2004050048
DECISION
On June 14, 2007, complainant filed an appeal from the agency's May 15,
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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Veterinary Medical Officer at the agency's Food Safety and Inspection
Office in Washington, D.C. On October 28, 2004, complainant filed an
EEO complaint alleging that he was discriminated against on the bases
of race (Caucasian) and sex (male) when, on or about June 2, 2004,
he was not selected for the Program Manager position, Food Safety and
Inspection Service (FSIS GS-340-15), advertised under Vacancy Announcement
No. FSIS-04-044.
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
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").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 134 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
After a review of the record, we find that complainant failed to raise
an inference of sex discrimination. The selectee, who is male, is a
member of complainant's same protected group.
We further find that complainant has raised an inference of race
discrimination because the selectee is Asian, and therefore outside
of complainant's protected group. However, the agency has articulated
a legitimate, nondiscriminatory reason for not selecting complainant;
namely, that his supervisory reference was not as good as the selectee's
reference. In fact, the Selecting Official averred that he was informed
complainant had difficulty tracking multiple projects, and worked
better alone than with a group. Because this was a management position,
the Selecting Official wanted someone who could invigorate the staff.
Accordingly, he chose the selectee, who had field experience while
working as a District Director.
In establishing pretext, complainant may show directly that a
discriminatory reason more likely motivated the agency or indirectly, by
showing that the agency's proffered explanation is unworthy of credence.
Although the burden of production, in other words, "going forward," may
shift, the burden of persuasion, by a preponderance of the evidence,
remains at all times on complainant. Burdine, 450 U.S. at 256.
In a non-selection case, pretext may be found where the complainant's
qualifications are plainly superior to the qualifications of the selectee.
See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); Wasser
v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995).
The Commission notes, however, that an employer has the discretion to
choose among equally-qualified candidates provided that the employment
decision is not based upon unlawful criteria.
As evidence of pretext, complainant presents his performance appraisal,
wherein he received a rating of "Exceeds Fully Successful" in his ability
to "Interact with Internal/External Organizations." He also claims that
the Selecting Official distorted his supervisor's comments, which were
meant to be positive. Complainant states that the Selecting Official
has not selected any White males for positions.
We find complainant has failed to show by a preponderance of the evidence
that the agency's selection decision was motivated by complainant's
race and/or sex. Although complainant did receive a high rating for
his management skills, he did not present sufficient evidence that
would cast doubt on the agency's reasons for choosing the selectee.
Employers generally have broad discretion to set policies and to 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 (1981). Moreover,
an agency has even greater discretion when it is filling management
level or specialized positions. Hickman v. Department of Justice (Drug
Enforcement Agency), EEOC Appeal No. 01A11797 (December 20, 2001)(citing
Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)). The record reveals
that the Selecting Official consistently testified that he desired someone
with good personnel skills, and chose accordingly. Complainant failed
to establish that his skills rendered him "observably superior" to submit
persuasive evidence of a discriminatory motive.
CONCLUSION
We AFFIRM the agency's final decision finding no discrimination.
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
February 13, 2009
Date
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0120073176
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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