0120080287
09-04-2009
William E. Ray, Jr., Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
William E. Ray, Jr.,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120080287
Agency No. WBR-2006-033
DECISION
On October 16, 2007, complainant filed an appeal from the agency's
September 24, 2007 final decision 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not discriminated
against based on his race when he was not selected for a position.
BACKGROUND
At the time of the events giving rise to this complaint, complainant, an
enrolled member of the Klamath Tribe, worked as a Zone Archaeologist,
GS-0193-13, for the Department of Agriculture's Forest Service
in Chiloquin, Oregon. In March 2006, the agency issued Vacancy
Announcement No. BOR-MP-06-102 (KS) for the position of Area Manager,
GS-0340-14/15, in Klamath Falls, Oregon. Complainant applied for
the position. The Personnel Office reviewed the applications, and
referred twelve qualified candidates to the Deputy Regional Director, the
selecting official (SO). The SO created a three member interview panel,
consisting of an Area Manager (AM1), a second Area Manager (AM2), and
the Director of Operations (DO), to interview the referred candidates.
The panel was asked to submit a list to the SO of the top candidates
for further review. Complainant was not recommended by the panel for
further consideration. The SO and the Regional Director reviewed the
top candidates' applications, along with the panel's recommendations,
and two were invited for a second interview. The SO ultimately selected
one of these two candidates.
On September 8, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of race (Native American) when,
on June 30, 2006, he was not selected for the position of Area Manager,
Klamath Basin Area Office, GS-340-14/15, under vacancy announcement
BOR-MP-06-102, as evidenced by his non-selection for the same position
in July 2001 (BOR-MP-01-205/206 DEU) and June 1996 (BOR-MP-96-026),
and for the similar position of Area Manager, Upper Columbia River Basin
Area Office, GS-340-14/15 (BOR-DEPN-RO-00-140) in January 2001.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding
no discrimination. He argues that he is a member of a protected
class, and the record evidence establishes that he was subjected to
discrimination based on his race. He argues that he has been placed on
a certificate of qualified candidates for management positions in 1996,
2001, and 2006, and, "[g]iven that complainant is an American Indian and
possessed the critical skill and knowledge of the Federal Indian Trust
Responsibility suggests discriminatory actions by not being selected for
these positions." He also argues that agency officials violated merit
principles by failing to properly inquire about his experience with the
Federal Trust Responsibility during his interview and questions whether
merit principles were applied "in an equitable and fair fashion."
In response, the agency urges the Commission to affirm the agency's
final decision. The agency argues that complainant failed to establish
a continuing violation between the events that occurred in the past and
his non-selection in 2006 and that complainant failed to establish his
non-selection was based on race discrimination for the reasons addressed
in the final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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).
Complainant must initially 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case of
race discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The SO submitted an affidavit
into the record stating that Personnel reviewed the applications submitted
for the position, and a list was created of 12 qualified candidates for
the position. The SO stated that he consulted with the Regional Director
to select individuals to participate on the three member interview panel,
and the agency flew the three panel members in for two days to conduct the
interviews. The qualified candidates were also offered the opportunity
to have the agency pay for them to travel to the interview site. The SO
stated that Personnel did not rank the candidates in advance, and he did
not ask the interview panel members to pre-rank the candidates. The SO
further stated that he instructed the panel members to put together
their questions and have their questions approved by Personnel.
The panel members stated in the record that all of the candidates were
asked the same questions during their respective interviews. AM1 and
AM2 stated that three candidates' interviews were conducted by telephone.
All three panel members stated that, after the interviews were completed,
the panel members conferred and recommended the top candidates for
further consideration. Complainant was not considered to be one of the
top candidates for the position. SO stated that he and the Regional
Director reviewed the applications and panel recommendations for the
four top candidates, and two of the candidates were invited for a
second interview. SO stated that he chose the selectee because he was
the most qualified candidate for the position, he had a proven track
record, and he showed he "knows the trust responsibilities."
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. The agency has broad discretion to carry out personnel
decisions and should not be second-guesesd by the reviewing authority
absent evidence of unlawful motivation. Id. at 259. Upon review,
we find that complainant failed to provide any evidence of pretext.
On appeal, complainant does not present any information that would suggest
that the agency's actions were motivated by discriminatory animus towards
complainant's race. Complainant argues that the record establishes
discrimination because agency officials did not properly question him
about his experience with the Federal Trust Responsibility during his
interview. However, AM1 and DO stated in the record that experience with
the Federal Trust Responsibility would have been covered in complainant's
KSAs, and AM2 stated that candidates were given the opportunity to expand
on the answers they provided in their KSAs during their interviews.
With respect to complainant's remaining arguments on appeal, we find
no evidence that the agency violated merit principles to discriminate
against complainant or demonstrated a "bias" against complainant during
the interview process. Complainant places great emphasis on the fact
that he was similarly deemed qualified and not selected for other Area
Manager positions in 1996 and 2001 in support of his argument that he was
subjected to disparate treatment, but these positions involved different
application processes and selecting officials. Notably, neither SO nor
the panel members were involved with complainant's non-selections in
1996 and 2001.
Although complainant challenges the credibility of the statements provided
by the agency officials on appeal, we note that he did not request
a hearing, and the Commission is limited to a review of the record
evidence. We are not persuaded, based on the record of investigation
and statements submitted on appeal, that complainant has shown that the
agency's articulated reasons for his non-selection were a pretext for
unlawful race discrimination.
CONCLUSION
Accordingly, based on a thorough review of the record, including the
evidence not specifically addressed herein, the agency's final decision
finding no discrimination is AFFIRMED.
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
______9-04-09____________
Date
2
0120080287
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120080287