01973815
09-03-1999
William Workman, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
William Workman, )
Appellant, )
) Appeal No. 01973815
v. ) Agency No. DON 94-62470-001
) Hearing No. 120-95-6456X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination on the basis of sex (male), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> Appellant alleges he was discriminated against when on
September 14, 1993, he was not selected for a GM-2150-13/14 Supervisory
Automotive Transportation Specialist (SATS) position pursuant to Vacancy
Announcement Number 07593-L. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a GM-2150-13 Transportation Specialist at the agency's Atlantic
Division, Naval Facilities Engineering Command, Norfolk, Virginia
(LANTDIV). After the agency's Director for the Chesapeake Division
(DIV-DIR) non-competitively selected appellant for the SATS position, and
his selection was approved by the Director of the Facilities Management
Department (DIR) within LANTDIV, some employees, including the eventual
selectee (female), complained that the selection process was unfair.
While the DIV-DIR had assessed each of the four candidates based on
ability to supervise, experience with activity business, and ability to
manage the Top Secret Black Box program, the selection was made without
convening a selection panel, and almost immediately after the position
was announced and closed. In response to accusations that appellant
was pre-selected for the position, the DIR informed the DIV-DIR that
he suspended DIV-DIR's selection of appellant for the SATS position.
Thereafter, DIV-DIR removed himself from the selection process and
convened a selection panel (PANEL) to review the candidates' applications,
conduct interviews, and recommend a candidate for the SATS position to
the DIR. The PANEL, after interviewing the candidates and reviewing their
application packages, recommended the selectee for the SATS position.
The DIR, without reviewing the candidates' SF-171 forms, endorsed the
PANEL's recommendation of the selectee for the SATS position.
Believing he was a victim of discrimination, appellant sought EEO
counseling and subsequently filed a formal complaint on November 8,
1993. At the conclusion of the investigation, appellant was provided
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding no age discrimination, but finding
discrimination on the basis of sex.
The AJ found that appellant established a prima facie case of sex
discrimination, and further, that the agency articulated a legitimate,
nondiscriminatory reason for its selection. Specifically, the AJ
noted that the PANEL members each testified that they felt the selectee
performed better in the interview, answering questions in greater detail
and demonstrating strong human relations skills. The PANEL members
each stated that they viewed the position more as an executive manager
type of position, rather than a position which required significant
technical competence, and after considering the application packages and
interviews, unanimously recommended the selectee for the SATS position.
The DIR endorsed the PANEL's recommendation without question, and the
selectee was thus selected for the SATS position.
The AJ then concluded that the agency's reasons for selecting the selectee
rather than appellant were a pretext for sex discrimination. In reaching
this conclusion, the AJ first found that appellant's qualifications
were plainly superior to the selectee because he had significantly more
technical experience, supervisory experience, education, performance
awards, and outstanding performance reviews. See RD at pages 11-12.
The AJ found the members of the PANEL were not credible, and seemed
�dumbfounded� when confronted with the differences between appellant's and
the selectee's background and experience at the hearing. Specifically,
the AJ noted testimony of the PANEL members that the selectee's skills
were comparable to appellant was belied by the record, and that it
appeared from their testimony that the PANEL members did not carefully
review the candidates' application packages. The AJ also recognized
that appellant had twice been selected for positions through the agency's
Executive Management Development Program (EMDP), while the selectee had
applied, but not been selected for, an EMDP position. The AJ found one
of the PANEL members not credible when he testified that he was unaware
why the DIV-DIR's original selection had been canceled and the PANEL
convened, when the other PANEL members were aware of the allegations
of pre-selection. The AJ noted that each PANEL member conceded that
appellant was more qualified based on the criteria established for the
position. Id. at page 14. The AJ then stated: �there is no way the
selectee's performance during the interview could compensate for the
difference in objective credentials evident here.� Id. at page 15.
The AJ noted that the selectee lacked an essential qualification for
the SATS position, a Top Secret clearance, which only appellant and the
DIV-DIR possessed. The AJ noted that the DIV-DIR had to re-write the
position description for the SATS position to not include management of
the Top Secret Black Box program in order for the selectee to encumber
the position. As a result, the DIV-DIR performed those duties himself.
The AJ cited testimony that the agency was attempting to increase its
representation of women in senior civilian management level positions,
and that such considerations were discussed by some PANEL members.
The AJ concluded that as there was no way the selectee's performance
in the interview could have compensated for the objective difference in
the qualifications between appellant and the selectee, and as appellant
demonstrated that his qualifications were plainly superior to those of
the selectee, such a conclusion required a finding of pretext based on
his sex. Id.
The agency's FAD rejected the AJ's finding of sex discrimination.
After finding that appellant had established a prima facie case of sex
discrimination, the FAD noted that the agency articulated legitimate,
non-discriminatory reasons for its selection. In contrast to the AJ,
however, the FAD found that the PANEL chose the selectee �based on her
work and familiarity with the consolidation of the transportation function
under the reorganization.� See FAD at page 2. The PANEL also felt that
the selectee possessed strong human relations skills, and that she was
better suited to manage the activity through the reorganization process.
Thus, the PANEL considered the selectee's human relations skills to be
more important than appellant's superior technical skills. The FAD then
concluded that appellant did not present evidence that gender motivated
the selection process.
The FAD conceded that appellant was technically better qualified than
the selectee. The FAD then stated that while such a conclusion may
raise a presumption of discrimination, such a presumption is rebuttable,
and the AJ's reasons for finding the PANEL's rationale pretextual did
not demonstrate that gender animus more likely than not motivated the
selection decision. In reaching this conclusion, the FAD discussed in
greater detail the history of some of the key parties to the dispute.
The FAD noted that the DIV-DIR formerly worked for another agency
division, where appellant had formerly been employed, that the DIV-DIR
came to his new position after he, himself, disbanded the prior division,
and that within five months of commencing his position as DIV-DIR,
sought to place his protegee, appellant, in the SATS position. Thus, the
agency noted that appellant �was perceived as being [an] outsider from
the 'enemy camp,' who [was] supposed to come in and 'straighten things
out.'� See FAD at page 8. The FAD noted that the DIV-DIR's selection of
appellant drew opposition. The FAD also noted that because the DIR was
new to the division and was not familiar with the DIV-DIR or his prior
work, he was more sensitive to the needs of his employees, and he agreed
to rescind the selection of appellant for the SATS position.
The FAD then found that the PANEL members concluded that the selectee was
best suited for the SATS position in this particular work environment.
The FAD noted that the PANEL members were more concerned with selecting a
candidate whose management style was best suited to guide the organization
through a period of consolidation, and they were less concerned with the
technical skills required for the position. The FAD found that the AJ's
conclusion that there was no way the PANEL members could have selected the
selectee was unwarranted, particularly when the PANEL members testified
that human relations skills were more important than technical skills
and experience. The FAD noted that the PANEL members openly admitted
their reliance on the interview in guiding their decision, and that no
PANEL member was caught in any inconsistency or lie.
The FAD also disputed the AJ's credibility findings of the non-voting
member of the PANEL, who, despite admitting on cross-examination that
the selectee was less qualified, was not a voting member of the PANEL,
and was only present to ensure the selection process was appropriately
completed. Concerning the Top Secret Black Box project, the FAD noted
the testimony of appellant's own witness, a former Director of Civilian
Programs and Equal Employment Opportunity, who stated that even though
the selectee did not possess a Top Secret security clearance, this fact
was inconsequential because a presumption exists that an individual
selected without such clearance would be able to obtain any required
clearance within a reasonable amount of time.
The FAD also found the DIV-DIR's testimony, which the AJ did not consider
in his RD, credible. Specifically, the DIV-DIR testified that he
believed the selection of the selectee over appellant was not motivated
by discriminatory animus. The FAD noted that the DIV-DIR had nothing
to lose and everything to gain (i.e., the reinstatement of appellant,
his friend and the individual whom he had originally selected) if he had
testified that the PANEL's selection was biased. The FAD then concluded
that there was no evidence that the gender of candidates mandated, or
even influenced, the PANEL's recommendation of the selectee. The FAD
noted that while appellant had cause to be upset at having been initially
selected, but then overlooked in favor of another employee, the agency had
a legitimate reason to select a candidate who demonstrated that she would
be better for the SATS position than the outsider from another division,
who, while possessing more technical skills, was not viewed favorably
concerning his human relations skills, and was considered an outsider.
On appeal, both parties advanced similar contentions to those raised
before the AJ, and the agency requests that we affirm its FAD.
After a careful review of the record, the Commission agrees with the
agency's conclusion that appellant did not establish that more likely than
not, gender motivated the selection process. In reaching this conclusion,
the Commission notes that two aspects of the selection process warrant
separate consideration and analysis: (1) the DIR's decision to rescind
the original selection of appellant and the DIV-DIR's decision to convene
a selection panel; and (2) the PANEL's recommendation of the selectee.
The DIR's decision to rescind the original selection of appellant,
and the DIV-DIR's decision to convene a selection panel
The DIR explained his motivation for rescinding the DIV-DIR's original
selection of appellant, namely, that the original selection had, at a
minimum, the appearance of pre-selection. See Hearing Transcript (HT)
at pages 189-191. This testimony was corroborated by the DIV-DIR, who
indicated that the DIR told him that he pulled the initial selection of
appellant because the four individuals who worked for the DIV-DIR and who
had applied but were not selected for the SATS position, all complained
about the selection of appellant. See HT at pages 131-141. The DIV-DIR
testified in detail about the history of, and culture at, the facility,
and how he was perceived to be the new guy from the �enemy camp� who was
sent in to �straighten them out.� Id. at page 133. The DIV-DIR also
indicated that he should not have stopped fighting for his selection
of appellant for the SATS position at that time. Id. at page 140.
Neither appellant nor the AJ suggested that gender motivated the DIR's
decision to rescind the DIV-DIR's initial selection of appellant, and
we find no evidence in the record to support a conclusion that DIR's
decision to rescind the selection of appellant was motivated by anything
other than his desire to appease a group of subordinates who expressed
dissatisfaction with the selection process, and suggested that the
DIV-DIR had pre-selected appellant, an outsider, for the SATS position.
The PANEL's recommendation of the selectee
As to the PANEL's recommendation of the selectee, the Commission
observes, as did the AJ and the agency, that appellant's technical
qualifications are clearly superior to the selectee's. See RD at pages
10-11, FAD at page 3. The issue which remains is how the PANEL arrived
at recommending the selectee over appellant, and whether gender played
a role in the PANEL's recommendation. In this respect, the Commission
notes, as did the AJ and the FAD, that the PANEL was more concerned with
selecting a candidate with strong human relations skills who could guide
management through a difficult period of change, rather than selecting a
candidate whose skills and experiences were more suitable for the SATS
position. See HT at pages 231, 232, 263, 271, 305. Where the RD and
FAD depart, however, is the significance of the PANEL's rationale, and
the factual basis from which the conclusion that gender animus motivated
the PANEL's recommendation of the selectee, is derived.
In this respect, the Commission concludes that because the AJ did not
fully set forth the agency's legitimate, nondiscriminatory reason for
its selection, and because the AJ misconstrued evidence that gender
was considered by the PANEL members, the Commission concludes that the
AJ made erroneous credibility findings and improperly substituted his
judgment for that of the agency. See Rash v. Department of the NAVY,
EEOC Request No. 05920717 (March 11, 1993).
Regarding the agency's legitimate, nondiscriminatory reason, the
Commission notes that the crux of the testimony of the PANEL member's
was not simply that the selectee performed better in the interview,
but that the selectee would be best suited to manage the organization
through a trying period of consolidation by appropriately managing,
training and mentoring her personnel. In this respect, the DIV-DIR
recounted how the agency's transportation functions in the Atlantic and
Chesapeake Divisions were merged, how he was placed in the Atlantic
Division to manage the merger, and how the employees of the Atlantic
Division, including the eventual selectee, now reported to him. See HT at
pages 71-76. The PANEL members were aware of all the changes occurring,
and the impact it was having on employees in the Atlantic Division.
The head of the selection PANEL acknowledged as much, and stated �...,
we were looking for someone who had strong human relations skills and
related well to people, et cetera. That could serve as a coach, a mentor,
during this trying period of consolidation.� See HT at page 231-232.
A second PANEL member viewed the position more as an Executive Management
position, and not a technical position. See HT at 263. Finally, the third
member of the PANEL noted that the position required not just technical
skills, but broad management of a large program. See HT at 305. In light
of the massive change the organization was enduring, the PANEL members
were concerned with placing an individual in the SATS position who could
manage, not the technical aspect, but the people aspect of the function;
and who employees in the Division would be comfortable working for.
The Commission has held that subjective criteria such as these
may demonstrate pretext and therefore need to be more closely
scrutinized. Fodale v. Department of Health and Human Services,
EEOC Appeal No. 05960344 (October 16, 1998); White v. Department of
the Army, EEOC Request No. 05930278 (February 25, 1994). On the other
hand, subjective criteria are frequently relied upon in promotions to
supervisory or management positions, and the use of such criteria is not,
in and of itself, an indicator of discriminatory motivation. Fodale
v. Department of Health and Human Services, EEOC Appeal No. 05960344
(October 16, 1998); Page v. U.S. Industries, 726 F.2d 1038, 1053
(5th Cir. 1984). Appellant would therefore not be able to establish
the existence of discriminatory animus merely by showing that the
PANEL's recommendation was unsound from a business standpoint, unfair,
or motivated by arbitrariness or ill will. See Patterson v. Department
of the Treasury, EEOC Request No. 05950156 (May 9, 1996).
Given the apparent disparity in technical qualifications between appellant
and the selectee to each of the PANEL members, it is evident why the
AJ described the PANEL's reaction at the hearing when confronted with
this disparity as appearing �dumbfounded.� Here, appellant exposed the
PANEL's use of subjective criteria, and how it produced the allegedly
discriminatory result of having recommended a candidate who did not
even approach the level of technical competence possessed by appellant.
While the Commission has held that a factor in proving discriminatory
intent may be demonstrated when an appellant's qualifications are
observably superior to those of the selectee, See Vanek v. Department
of the Treasury, EEOC Request No. 05940906 (January 16, 1997); Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981), the inquiry does not
end here.
As stated previously, subjective criteria are frequently relied upon
in promotions to supervisory or management positions, and the use of
such criteria is not, in and of itself, an indicator of discriminatory
motivation. See supra Fodale. Appellant must demonstrate, by a
preponderance of the evidence, that the agency's articulated reason is
a pretext for discrimination, either directly, by demonstrating that a
discriminatory reason more likely than not motivated the agency's action,
or indirectly, by showing that the agency's proffered reasons are unworthy
of credence, and that appellant's explanations of discrimination are
to be believed. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
The AJ found that gender was a consideration in the PANEL's recommendation
of the selectee, and having found the PANEL lacked credibility, concluded
that gender considerations tainted the PANEL's recommendation of the
selectee. We disagree, and conclude that no evidence exists to suggest
that gender was an unlawful motivation lurking behind the PANEL's use
of subjective criteria.
The only evidence appellant presented to suggest that gender motivated
the PANEL's recommendation of the selectee was provided in the form of
statements by agency personnel representatives who indicated they wanted
agency management officials to do a better job of selecting females,
and statements by PANEL members indicating that it considered the
implications of selecting a female because a male had been previously
selected. See Investigative file at page 62 and HT at pages 26-27,
122, 144-145, 236, 256, and 275. A closer review of the PANEL member's
testimony, however, reveals that gender was not a motivating factor in the
decision to recommend the selectee. The head PANEL member testified that
he simply initiated a request for information on under-representation
due to the PANEL's �obligation� to consider gender, race and other
prohibited factors in higher graded positions. See HT at 235-236.
He then stated that such information was not a consideration in the
PANEL's recommendation. Id. A second PANEL member stated that the
PANEL considered the implications of selecting someone different from
the original selection, but that they all felt very comfortable with the
result. See HT at page 275. Finally, the third PANEL member stated that
he was not aware of any encouragement to consider females for management
positions at the agency, and also indicated that if it was discussed at
all, such discussions did not occur until after the PANEL's selection was
made. See HT at pages 319-320. These statements are neither inconsistent,
nor do they establish that gender was a factor in the selection process.
The AJ's reliance on this testimony was erroneous, as was his conclusion
that the PANEL member's lacked credibility, and absent any other evidence
that gender was considered when the PANEL recommended the selectee,
the Commission concludes that gender was not improperly considered by
the PANEL.<2>
In summary, appellant has produced no credible evidence that the decision
to convene a selection panel was tainted by considerations of gender.
Furthermore, the evidence demonstrates that the PANEL was concerned with
filling the SATS position with a candidate who was best suited to guide
the organization through change under a difficult period of consolidation.
Thus, selecting a candidate who was not an outsider became more important
to the PANEL than selecting a more technically competent and superiorly
qualified candidate, who was an outsider. As is evident by the record,
the fact that the selectee was female and the appellant was male was
inconsequential, and had no bearing on the ultimate decision to either
recommend or select the selectee for the SATS position. Accordingly,
after a careful review of the record, including appellant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
September 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 We note that while
appellant also alleged age discrimination as a
basis in his complaint, appellant specifically
noted on appeal that he was not appealing the
finding of no age discrimination.
2 The Commission also notes that the DIR testified, in selecting the
selectee, that he relied on the PANEL's judgment when it recommended the
selectee, and he did not review the candidates' application packages. See
HT at pages 211-215. Appellant produced no evidence to demonstrate that
gender was considered by the DIR when he selected the selectee.