01A25028_r
03-04-2003
Weldon Adams, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Weldon Adams v. Department of Agriculture
01A25028
March 4, 2003
.
Weldon Adams,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A25028
Agency No. 990115
Hearing
No. 110-A1-8313X-AES
DECISION
Complainant filed a formal EEO complaint in which he claimed that the
agency discriminated against him on the bases of his sex (male), race
(White), and age (66) when in June 1998, he was not selected for the
position of Program Specialist, GS-301-13, in the agency's Food and
Nutrition Service. Complainant had been employed by the agency at the
time of the selection as a Financial Specialist, GS-501-12. The agency
accepted the complaint and conducted an investigation. Thereafter,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
Subsequent to the completion of the hearing, in a decision dated July
26, 2002, the AJ found that the agency had not discriminated against
complainant. The AJ found that complainant failed to establish a prima
facie case of race and age discrimination. The AJ observed that the
selectee was in the same protected groups as complainant for those bases.
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its action. The AJ noted that the selecting official, the
Deputy Regional Administrator, testified that each of the applicants
for the position were interviewed and asked the same nine questions.
According to the selecting official, the selectee was chosen because
she had extensive experience in the food stamp program, she had
some experience with the WIC program, he thought that she would be a
good supervisor, and her interview responses demonstrated creativity
and flexibility. The AJ noted that the selecting official testified
with regard to complainant that he did a very good job as a Financial
Specialist, but that he believed complainant had less creativity and
flexibility than the selectee. The AJ found that complainant failed to
rebut the selecting official's testimony.
The agency issued a final order dated September 27, 2002, wherein it
accepted and fully implemented the AJ's decision. It is from this final
order that complainant now appeals.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation 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.
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. 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 (2000). Although McDonnell Douglas is a
Title VII case, its analysis is also applicable to disparate treatment
cases brought under the ADEA. See Sutton v. Atlantic Richfield Co.,
646 F.2d 407, 411 (9th Cir. 1981).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
We will assume arguendo that complainant established a prima facie
case with respect to each of the alleged bases. With respect to
complainant not being selected for the Program Specialist position, we
note that an agency has the discretion to choose among equally qualified
candidates so long as the decision is not premised on an unlawful factor.
See Burdine, 450 U.S. at 258-259; Mitchell v. Baldridge, 759 F.2d 80
(D.C. Cir. 1985). We note that in nonselection cases, pretext may be
found where the complainant's qualifications are demonstrably superior to
the selectee's qualifications. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). The selecting official testified that he chose the selectee
rather than complainant due to the selectee's experience in the food
stamp program and because she projected more creativity and flexibility in
her responses to questions during her interview. The selecting official
testified that the selectee's prior experience included work with food
stamp cases at the county level and also as a district supervisor over
several food stamp offices in Georgia. The selecting official further
testified that much of the selectee's work at the agency related to the
food stamp program. We find that the agency articulated legitimate,
nondiscriminatory reasons for its selection.
Complainant claims that his lack of food stamp experience in comparison
with the selectee should not have adversely affected him because
food stamp experience was not listed as a requirement in the vacancy
announcement. Complainant also claims that the selecting official was
arbitrary in how he rated the candidates. Additionally, complainant
claims that the agency has engaged in a pattern and practice of systemic
disparate treatment toward White males over the age of 40. We find that
complainant has not shown that the selecting official's primary reliance
on the selectee's food stamp experience and her interview responses
were pretext intended to mask discriminatory intent. The record
supports the agency's position that the selectee had work experience
and professional qualities that were relevant for the Program Analyst
position. With regard to complainant's claim of systemic discrimination,
complainant states that as of September 1998, there were twelve GS-13's.
According to complainant, eight of the twelve are female and three
of the twelve are Black. We find that this evidence does not prove
that systemic discrimination exists. We find that complainant's
qualifications are not so plainly superior to that of the selectee as to
warrant the conclusion that complainant's nonselection was attributable to
discriminatory motivation. We find that complainant has failed to refute
the agency's reasons for not selecting him. We find that complainant
has failed to establish, by a preponderance of the evidence, that the
agency's reasons were pretext intended to mask discriminatory intent.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
order, because a preponderance of the record evidence does not establish
that sex, race, or age discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 4, 2003
__________________
Date