02a50006
07-28-2005
Agency.
Reginald E. Jarvis v. Social Security Administration
02A50006
July 28, 2005
.
Reginald E. Jarvis,
Grievant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 02A50006
Agency No. BW-2004-R-0007
DECISION
Grievant filed a timely appeal with this Commission from an arbitration
decision dated October 19, 2004, denying his grievance of unlawful
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. In his
grievance, the grievant alleged that the agency discriminated against
him on the basis of race (African-American) when he was not selected
for the GS-343-12 Management Analyst (Building Manager) position.
EEOC regulation 29 C.F.R. � 1614.401(d) provides that a grievant
may appeal to the Commission from a final decision of the agency,
the arbitrator, or the Federal Labor Relations Authority (FLRA) on a
grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised.
The record reveals that, during the relevant time, grievant was
employed as a GS-11 Safety and Occupational Health Specialist in the
agency's Office of Field Management, Office of Environmental Health
and Occupational Safety. On October 15, 2001, the agency issued
vacancy announcement W-1134 for the GS-12 Management Analyst position.
After the closing date for the vacancy, an assessment panel evaluated
the applications submitted and rated each applicant with a score from
0 to 100. Applicants who scored at least a 70 were placed on the well
qualified list and invited for an interview. On January 30, 2002, the
assessment panel certified five candidates on the list, including the
grievant. Three candidates, including Selectee (Caucasian) scored 70,
one scored 90, and the grievant scored 97. On February 26, 2002, Human
Resources Specialist approved the well qualified list. Recommending
Management Official (RMO) (Caucasian) and Branch Chief (Caucasian), who
formerly held the Management Analyst position, conducted interviews and
created summaries of each interview which were forwarded to Selecting
Official (SO) (African American). In April 2002, Selectee was awarded
the position.
On April 17, 2002, grievant filed a grievance alleging non-selection based
on race. The agency denied the grievance at both steps. On June 11,
2002, the Union invoked arbitration. Following a hearing, an arbitration
decision was issued October 19, 2004 finding no discrimination.
The arbitrator found that, although grievant was qualified for the
position and Selectee appeared to have been the beneficiary of a
favorable review, grievant failed to demonstrate that any favoritism
shown to Selectee provided a nexus for a claim of race discrimination.
The arbitrator further found that the record failed to demonstrate that
but for the agency's actions the grievant would have been the selectee.
On appeal, grievant restates arguments previously made at the arbitration
hearing. In response, the agency requests that we affirm the arbitration
decision.
In the absence of direct evidence of discrimination, grievant's claim is
examined under the three-part analysis originally enunciated in McDonnell
Douglas Corporation v. Green. 411 U.S. 792 (1973). First, grievant
must 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. Id. at 802. Next, the agency must
articulate a legitimate, nondiscriminatory reason(s) for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the grievant must prove,
by a preponderance of the evidence, that the legitimate reason(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
Grievant can prove pretext directly by showing a discriminatory reason
more likely motivated the agency or indirectly by showing that the
agency's proffered explanation is unworthy of credence. Id.
In order to establish a prima facie case of race discrimination, grievant
must show: (1) he is a member of a protected class; (2) he was qualified
for the position; (3) he was not selected for the position; and (4)
he was accorded less favorable treatment from that given to persons
otherwise similarly situated. McDonnell Douglas, 411 U.S. at 802;
Williams v. Department of Education, EEOC Request No. 05970561 (August
6, 1998). The arbitrator found that grievant established a prima facie
case of race discrimination. We agree. Grievant, an African-American,
is a member of a protected group, he applied for the vacancy, his
application was rejected, and Selectee, a White applicant, was selected.
Once the grievant establishes a prima facie case of discrimination,
the agency has the burden of production to articulate a legitimate,
non-discriminatory reason for its action. The agency determined that
Selectee was the most qualified candidate for the position given his
work record, experience, and interview performance. RMO testified that
Selectee performed much better during the interview than the grievant
and that Selectee demonstrated greater job knowledge concerning the
actual functioning of the buildings. We find the agency has met its
burden of production.
The grievant now bears the burden of proving by a preponderance of the
evidence that the agency's reasons were a pretext for race discrimination.
Grievant can do this directly by showing a discriminatory reason
more likely motivated the agency or indirectly by showing that the
agency's proffered explanation is unworthy of credence. Burdine, 450
U.S. at 256. In a non-selection case pretext may be found where the
grievant's qualifications are demonstrably superior to the selectee's.
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, the
agency has broad discretion to carry out personnel decisions and should
not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Burdine, 450 U.S. at 259.
Grievant argued in both his post-hearing brief and his supporting brief
on appeal that his superior qualifications proved pretext. However,
RMO and Branch Chief indicated that Selectee performed better during his
interview and appeared more qualified for the Management Analyst position.
RMO testified that Selectee had more experience with the buildings'
physical plant and shop personnel than the grievant. The agency also
noted on appeal that grievant had limited experience at the GS-11 grade
level at the time of his application while the selectee had been at
the equivalent of a GS-11 grade level for more than three years at the
time of the selection. Accordingly, we find grievant failed to present
sufficient evidence establishing that his qualifications were plainly
superior to those of the selectee or any other persuasive evidence
that the agency's legitimate, nondiscriminatory reason for grievant's
non-selection was pretext for discrimination.
Therefore, after a careful review of the record in its entirety,
including consideration of all statements submitted on appeal, we AFFIRM
the arbitration decision because the preponderance of the evidence of
record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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).
GRIEVANT'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
July 28, 2005
__________________
Date