Thomas W. Baughman, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 25, 2009
0120070418 (E.E.O.C. Mar. 25, 2009)

0120070418

03-25-2009

Thomas W. Baughman, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Thomas W. Baughman,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120070418

Agency No. FSA200500163

Hearing No. 570-2006-00097X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's September 11, 2006 final order 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. Complainant

alleged that the agency discriminated against him, on the bases of

race (Caucasian), sex (male), color (white), and in reprisal for prior

protected EEO activity when on or about February 23, 2005, he learned

that he was not selected for the position of Equal Employment Manager,

GS-0260-15 which was advertised under Vacancy Announcement Number

UF185474TC.

The record shows that on January 20, 2004, the Farm Services Agency (FSA),

which is a component of the Department of Agriculture, posted a vacancy

announcement for an EEO Manager position (Director of the Office of Civil

Rights or Civil Rights Director). Complainant was one of approximately

13 individuals referred to on the Merit Promotion Certificate for the

GS-15 Civil Rights Director position. Subsequently, complainant was

interviewed by an interview panel which consisted of three panel members

and an EEO observer. The panel members asked each applicant the same

eight questions and assigned a ranking of either "high," "medium," or

"low" based upon each applicant's interview and application packet.

Complainant was one of 10 candidates who were ranked "low" by the panel.

None of the applicants who were interviewed were ranked "high." Three of

the candidates were ranked "medium." The record also shows that there

were two non-competitive candidates who were ranked highly qualified, one

of whom was an African-American male (C1). The selecting official (SO)

explained that none of the applicants (competitive or non-competitive)

was selected for the position because the panel members did not recommend

any of the applicants for selection.

SO explained that the individual then serving as the Acting Civil

Rights Director did not want to remain in the detail position because

he was not being paid the higher salary that went with the position.

SO testified that, consequently, he approached several individuals in

various Civil Rights offices within the Department of Agriculture to

inquire whether they could recommend any individuals to temporarily

fill the Civil Rights Director position on a detail while the process

to permanently fill the position was ongoing. SO testified that one

individual (SE), who was a GS-15 Division Director within the Office of

Civil Rights, was highly recommended by several people to temporarily

serve as Acting Civil Rights Director. SO further testified that he

then spoke in detail with SE to learn more about him since he did not

know SE at the time. SO was satisfied from his conversation with SE that

SE could step in at least on a temporary detail. However, SO still had

some doubts because he (SO) did not have any real experience with SE.

Several months later, in or about September of 2004, after SO had had

an opportunity to observe SE in the position for a few months, he found

that SE had adequate management experience to perform the position and

was performing well. SO testified because the Office of Civil Rights

was in turmoil he was looking to fill the position at issue with a

person who possessed strong management skills. Accordingly, management

experience was far more important to SO than program experience in his

assessment of the qualifications for the Director position. SO noted

that there were technicians in the Office of Civil Rights who had both

Title VI and Title VII knowledge and, accordingly, those technicians

could compensate for any such knowledge that a Director with strong

management skills might lack. SO also testified that, because SE was

performing well, he decided to reassign him into the position in order to

avoid the long drawn out process of reposting the vacancy announcement,

waiting for Human Resources to receive applications and qualify them;

in short, go through the entire selection process again. Accordingly,

SE was permanently reassigned into the Director of the Office of Civil

Rights position on November 28, 2004. SO testified that his decision

not to select complainant, as well as his decision to place SE into the

position at issue, was not motivated in any way by complainant's or SE's

race or gender.

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. National Labor Relations Board, 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.

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). He

must generally establish a prima facie case by demonstrating that

he 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). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he or she was subjected to adverse treatment by the agency; and (4) a

nexus exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

Following a hearing, the Administrative Judge (AJ) set forth a thoroughly

detailed decision explaining the bases for his conclusion that complainant

did not prove by a preponderance of the evidence that discrimination

occurred. Without discussing each point herein, we find substantial

evidence in the record to support the AJ's conclusions and note that

the AJ made numerous credibility findings which concluded that SO was

a highly credible witness. Moreover, we agree with the AJ's conclusion

that if SO's intent had been to select an African-American man to fill

the position at issue, then it would have been a simple matter for

SO to have selected C1 (African-American, male) to fill the position.

The record shows that C1 was rated highly qualified. Moreover, C1 had

served as a Civil Rights Director in another component of the agency for

one year, so he clearly had the requisite experience. However, SO did

not select him. The AJ concluded that SO's decision not to select C1

makes his testimony with respect to wanting management experience all

the more credible because SO knew that C1 was not well-regarded as a

manager and SO had stated that he wanted a strong manager.

The AJ also addressed in detail the evidence presented by complainant

in support of pretext. Complainant presented, inter alia, evidence

of historical or statistical hiring data supported by anecdotal

testimony which reflects a disproportionate number of minorities and,

in particular, African-Americans to the position of Director of the

Office of Civil Rights. However, even if we conclude that any of the

prior hiring decisions of minority applicants were likely motivated by

race, we agree with the AJ's conclusion herein that in this particular

case the preponderance of the evidence does not support a finding of

discrimination against complainant.1 Moreover, we note that the record

is devoid of evidence of reprisal.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal,2 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 record.

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

March 25, 2009

Date

1 We note that there is insufficient evidence in the record to conclude

that any of the responsible management officials in the present selection

decision were involved in any of the prior hiring decisions.

2 We note that complainant submitted well-presented and thorough arguments

on appeal. Assuming, arguendo, that complainant's arguments related to

the statistical/historical hiring data and the alleged failures in the

application process have merit, we nonetheless find such information

insufficient to prove racial animus on the part of any selecting or

interviewing official. In addition, contrary to complainant's assertions

on appeal, we find that the AJ's credibility findings are supported by

substantial evidence in the record.

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0120070418

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013