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.