Verne Dickerson, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMay 19, 2000
01973802 (E.E.O.C. May. 19, 2000)

01973802

05-19-2000

Verne Dickerson, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Verne Dickerson v. Department of Justice

01973802

May 19, 2000

Verne Dickerson, )

Complainant, )

) Appeal No. 01973802

v. ) Agency No. F954705

)

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

____________________________________)

DECISION

Verne Dickerson (complainant) timely initiated an appeal from a final

agency decision (FAD) concerning his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The

appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). Complainant alleged that he

was discriminated against on the bases of race (Black) and disability

(Multiple Sclerosis) when he was not selected for an Assistant Equal

Employment Opportunity (EEO) Officer position with the Federal Bureau

of Investigation (FBI).

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a Supervisory Special Agent, Chief of the General Background

Investigations Unit, Personnel Division, at the FBI Headquarters

in Washington, D.C. Believing he was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on May 26, 1995. At the conclusion of the investigation,

complainant was informed of his right to request a hearing before an EEOC

Administrative Judge or alternatively, to receive a final decision by

the agency. After initially requesting a hearing, complainant withdrew

his request and asked for an immediate FAD.

In its FAD, the agency concluded that complainant failed to establish

by a preponderance of the evidence that his nonselection was motivated

by discriminatory animus.

Complainant raises no contentions on appeal. The agency, after

reiterating arguments set forth in the FAD, requests that we affirm

its FAD.

FINDINGS AND ANALYSIS

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411, U.S. 792 (1973) and Prewitt v. United States Postal Service, 662

F.2d 292, 310 (5th Cir. 1981), the Commission agrees with the agency that

complainant failed to establish that his nonselection was discriminatory.

Assuming arguendo that complainant established a prima facie case of race

and disability discrimination, he failed to establish by a preponderance

of the evidence that the agency's articulated nondiscriminatory

explanation for its action was a pretext for discrimination.

The agency noted that while complainant was well qualified for the

position, S1 was selected due to his superior program management and

supervisory abilities. In a non-selection case, a complainant may

demonstrate pretext in a number of ways, including a showing that his

qualifications are observably superior to those of the selectee. Bauer

v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Department

of Education, EEOC Request No. 05970561 (August 6, 1998). In the case at

hand, complainant makes two arguments in attempting to establish pretext.

First, complainant asserts that under the numerical matrix used to

rank applicants, he was ranked highest. Complainant was not initially

ranked highest on the numerical matrix, but during the interview

process complainant's division head changed his recommendation for

complainant from "recommended," which received 10 points on the scale,

to "highly recommended," which received 20 points, making complainant

the highest-ranked applicant on the numerical scale. A review of the

transcript of the meeting of the EEO Career Board (Career Board) that

recommended S1 for the position indicates that the numerical rankings

were used to identify the top five candidates, at which point the Career

Board went into a more in-depth analysis based on interviews with the

candidates' ranking officials. The discussion of comments made by the

candidates' ranking officials led the Career Board to recommend S1 for

the position. It is clear from the record that both the Career Board

that recommended that S1 be selected, and the Special Agent Mid-Level

Management Selection (SAMMS) Board which decided to select S1, were

aware of the change in complainant's recommendation and took it into

consideration. Both the Career Board and the SAMMS Board noted that

S1's superior program management and supervisory skills made him the best

candidate. As numerical rank was not the deciding factor in the selection

process, complainant's higher numerical ranking does not establish that

the agency's articulated explanation is a pretext for discrimination.

Second, complainant asserts that he is better qualified than S1, noting,

among other things, that he has been resolving EEO issues for years and

has a broad understanding of EEO regulations and policies. The record

establishes that complainant did have more experience with EEO matters

than S1. However, S1 was given a very detailed recommendation from his

supervisor, describing his excellent program management skills, while

complainant's ranking official provided few details of complainant's

abilities in the program management area. The vacancy announcement for

the position listed "personal commitment to promote EEO for all employees

and applicants" and "program management ability" as qualifications. As

evidenced by the transcripts of their meetings, both the EEO Career

Board and the SAMMS Board took complainant's greater EEO experience

into consideration and nevertheless found that S1's program management

abilities made S1 the better choice.

In selection cases, the selecting officers have the discretion to choose

from among equally-qualified candidates and their decision should

not be second guessed by the reviewing authority without evidence of

unlawful motivation. See Fodale v. Department of Health and Human

Services, EEOC Request No. 05960344 (October 16, 1998). In this case,

complainant had strengths that S1 lacked and vice versa. While we believe

that complainant is well qualified for the position in question, we can

find no evidence that the agency was motivated by unlawful reasons in

selecting S1. We therefore find that complainant has not established

that he was discriminated against as alleged.

Therefore, after a careful review of the record, including arguments and

evidence not specifically addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

May 19, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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.