0120081459
03-31-2011
Sabrena J. Whitson, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Sabrena J. Whitson,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081459
Hearing No. 451-2007-00178X
Agency No. 9P0J07003
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s December 19, 2007 final order concerning
her 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. For the following
reasons, the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Financial Specialist at the Agency’s Headquarters in San Antonio,
Texas. On December 1, 2006, Complainant filed a formal complaint
alleging that the Agency discriminated against her on the basis of sex
(female) when she was not selected for a Business Operations Specialist
in Headquarters.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ held a hearing on November
13, 2007, and issued a bench decision immediately thereafter.
In his decision, the AJ initially assumed arguendo that Complainant had
established a prima facie case of discrimination and found that the Agency
had articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, Complainant was not selected for the position because the
selectee was the better qualified candidate. The selecting official (SO)
testified that he was looking for a candidate with business experience and
who understood what it took to run a business (i.e. to make a profit,
keep costs down, etc.). Further, SO testified that the Agency’s
mission and technology were changing at the time and that new skill sets
were needed for the position. Particularly, the Agency was undergoing a
major transition to a more computerized system. While Complainant was
qualified, SO testified that the selectee had the business experience
and new skill-set that Complainant did not possess. Next, the AJ
determined that Complainant failed to show that the Agency’s reasons
were pretextual. As a result, the AJ found that Complainant had not
been discriminated against as alleged.
The Agency subsequently issued a final order fully implementing the AJ’s
decision. On appeal, Complainant alleges that she has more experience
than Complainant and was the better qualified candidate. Accordingly,
Complainant requests that the Commission reverse the final order.
The Agency requests that the Commission affirm the final order.
ANALYSIS AND FINDINGS
Standard of Review
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. Nat’l Labor Relations Bd., 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). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks; in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For Complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the Agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
Complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June
8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
Upon review of the record, the Commission finds that there is substantial
evidence in the record to support the AJ's finding of no discrimination.
The Agency articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, SO testified that it was important to him that
the individual selected for this position had actual business experience.
Hr’g Tr., at 132. SO affirmed that the selectee was the best qualified
applicant because he had experience running a business and knowledge
related to business, systems information, and accounting. Id. at 133.
Conversely, Complainant did not have any business management experience.
Id. at 134.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec’y Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. at 256. Complainant can also
establish pretext by showing that her qualifications are “plainly
superior” to those of the selectee. Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). In the instant case, Complainant has failed to
make such a showing.
The record establishes that while Complainant may have had more experience
at the Agency than the selectee, Commission precedent has established
that the number of years of experience does not necessarily establish the
best qualified applicant. See, e.g., Buck v. Dep’t of the Treasury,
EEOC Appeal No. 01A54621 (Mar. 24, 2006). Furthermore, Complainant did
not have business management experience, like the selectee. In the
present matter, the record does not support Complainant’s claim
that her qualifications were more superior than the selectee’s.
The Commission notes that an employer has discretion to choose among
equally qualified candidates, so long as the selection is not based on
unlawful criteria. In the absence of evidence of unlawful discrimination,
the Commission will not second guess the Agency's assessment of the
candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine,
450 U.S. at 259. Here, the weight of the evidence reveals that
SO chose the selectee because he believed he was better qualified.
Complainant’s qualifications are not so plainly superior that they
undermine the Agency's explanation.
The Commission finds that there is substantial evidence in the record
to support the AJ’s finding that Complainant failed to establish, by
a preponderance of the evidence, that the Agency's articulated reasons
were pretext for discrimination. Accordingly, the Commission finds
that Complainant has failed to show that she was discriminated against
as alleged.
CONCLUSION
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 substantial evidence of the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
March 31, 2011
Date
2
0120081459
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120081459