0120122450
10-18-2012
Alexander Z. Moreno, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Alexander Z. Moreno,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120122450
Hearing No. 451-2011-00279X
Agency No. 8Z0J10020
DECISION
Complainant filed an appeal from the Agency's April 12, 2012, Final Order 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. For the following reasons, the Commission AFFIRMS the Agency's Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Production Controller at the Agency's Lackland Air Force Base facility in Texas. On August 10, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him as follows:
On the bases of race (Hispanic), color (brown), and national origin (Mexican American), the Agency discriminated against Complainant when:
1. Complainant was not selected for the WS-8852-10, Branch Chief, 780 support section, position in January 2010.
On the basis of race (Hispanic), the Agency discriminated against Complainant when:
2. Complainant was not selected for the position of WS-8801-10, Aircraft Overhaul Supervisor position, in April 2010.
On the basis of reprisal for his prior EEO activity, the Agency discriminated against Complainant when:
3. Complainant was not selected for promotion to a GS-1152-11, Supervisory Production Controller position, internal vacancy number 10SEP78829, in September 2010.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on February 18, 2012, and issued a decision on March 5, 2012.1
In her Decision, the AJ found that with regard to claim (1), Complainant had been initially recommended for selection because he was the only candidate known to have completed the training program required for the position. However, another candidate, E1, who was ranked higher than Complainant after the interview process, subsequently notified the Agency that he too had completed the necessary training program many years earlier. Prior to the time Complainant was offered the position, the selecting official selected E1. The AJ found no evidence that Complainant's protected classes played any role in the Agency's decision to select E1.
With regard to claim (2), the AJ found the evidence established that Complainant ranked sixth out of the seven candidates who were interviewed for this position. The AJ found no evidence that Complainant's protected classes played any role in the Agency's selection of E2 for the position of aircraft overhaul supervisor. The AJ noted that the candidate ranked number one by the interview panel was recommended for selection and that recommendation was accepted by the selecting official.
Regarding claim (3), again the AJ found that the selectee, E3, had the most experience as a production scheduler of the candidates for this position and that the selecting official made his decision after noting that E3 achieved the highest score during the rating and ranking process. The AJ found no evidence that the selecting official was influenced by Complainant's prior EEO activity in his decision not to select Complainant for the position.
Accordingly, the AJ found that Complainant failed to present evidence that more likely than not his race, color, national origin, or prior EEO activity played any role in the Agency's actions as alleged. The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
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). He must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find that substantial evidence supports the AJ's Decision. Specifically, we find the evidence shows that E1 possessed the necessary education for selection and that initially, this information was not known to the recommending and selecting officials (claim (1)). The AJ found that the evidence did not show that any offer had been extended to Complainant. The AJ found that upon proof that E1 had indeed completed the required training, that information, together with E1's overall performance during the interview process, compelled the selecting official to select E1, rather than Complainant, for the position. We find, as did the AJ, no evidence that Complainant's race, color, or national origin played any role in the Agency's decision.
We further find substantial evidence supports the AJ's Decision regarding the additional two selection processes, the results of which did not place Complainant in the respective positions. We find that Complainant's placement among the candidates applying for the position was not at the top of either list of candidates after the interview process (claim (2)); nor was Complainant the best qualified after consideration of the submitted career briefs (claim (3)). We note that S1, who served on the selection panel for the Overhaul Supervisor (claim (2)), stated that E2 answered the panel's questions and "articulated the duties of the job" better than Complainant did. S1 further stated that after reviewing the career briefs submitted by Complainant and the candidates for the Production Controller position (claim (3)), that E3 possessed the greatest experience and applicable education for the position.
We find nothing in the evidence indicates that the selection panels created by the Agency were influenced in their recommendations by any Agency official; nor is there any indication that the panel recommendations, or the identified selecting officials, took into consideration Complainant's protected classes or his prior EEO activity in the selection process.
CONCLUSION
We AFFIRM the Agency's Final Order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
October 18, 2012
__________________
Date
1 The AJ's Decision is dated February 27, 2012. The accompanying Order Entering Judgment is dated March 5, 2012.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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