01981110
11-13-1998
Carlos Heras, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Carlos Heras v. Department of the Air Force
01981110
November 13, 1998
Carlos Heras, )
Appellant, )
)
v. ) Appeal No. 01981110
) Agency No. KHOF96500
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from a final agency decision (FAD) concerning his
equal employment opportunity (EEO) complaint, alleging discrimination
on the bases of sex (male) and reprisal for prior EEO activity, in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The Commission hereby accepts the appeal in
accordance with EEOC Order No. 960.001.
The issue presented is whether appellant has proved, by a preponderance of
the evidence, that he was discriminated against on the above-referenced
bases when he was not selected for the position of Equal Employment
and Staffing Specialist (EESS), GS-201-09. Neither side submitted any
contentions on appeal.
At the time of his nonselection, appellant was a Pneudraulic Systems
Mechanic, WG-8255-10, at the agency, who had applied for the EESS
position. Believing that he was the victim of discrimination, appellant
sought EEO counseling and, thereafter, filed the instant formal complaint
on December 2, 1996. The agency accepted the allegation and complied
with all of our procedural and regulatory prerequisites. Appellant did
not request a hearing; therefore, the agency issued a FAD, finding no
discrimination. Appellant now appeals the FAD.
The duties of the EESS position were to provide technical assistance on
staffing and equal employment related matters and administer special
placement programs. The selection panel ranked the 16 applicants
according to the factors of technical knowledge and experience, education,
awards, and performance appraisals, making personnel experience the most
important factor. The panel then selected the top eight ranked candidates
for interviews, and the selecting official (SO) next picked two selectees
(STs) from this group for the EESS position. The SO's choices were
based on a review of the STs' work histories and their interviews,
both of which indicated knowledge and experience in the personnel field.
Since appellant was the lowest ranked of all 16 candidates, he was not
interviewed. As a union steward for the past 10 years, he felt that
he had gained experience as a Staffer, Classifier, Employee Relations
Specialist, Industrial Relations Specialist, Labor Relations Specialist,
and EEO counselor. He argued that no one in the staffing office had
this kind of experience and that if he had been interviewed, he would
have scored high. He alleged that the break in the scores used to
keep him from being interviewed was done to reprise against him as the
representative for an EEO complainant and to select a female.
We find, however, that the agency was justified in not interviewing
appellant based on his low ranking score. In this respect, his work
experience as a mechanic was not as relevant as that of the STs' to the
EESS position, who were an Employee Relations Assistant and a Staffing
Assistant, respectively. Furthermore, while his latest performance
appraisal was rated as "Fully Successful," we note that both STs were
rated "Superior," the highest rating possible. In addition, of the
eight applicants interviewed, two were male, and the SO and the rating
panel members testified without rebuttal that they were unaware of
appellant's prior EEO activities. Thus we find that appellant is not
able to show that the agency's legitimate, nondiscriminatory reason
for not interviewing or selecting him (i.e., his low ranking score)
was a pretext to mask discrimination based on sex or reprisal. Nor has
appellant shown that his qualifications were "so plainly superior" that
a finding of pretext is warranted. See Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981).
Finally, while appellant protested that the agency's use of a ranking
score kept him from being interviewed, we note that it is not appellant's
prerogative but rather the agency's to choose criteria for evaluating job
candidates for a particular position, as long as the criteria are applied
in a nondiscriminatory manner. See Loeb v. Textron, Inc., 600 F.2d 1003,
1012, n.6 (1st Cir. 1979). It is uncontroverted that the scoring criteria
used by the selection panel affected all the candidates in the same
manner, and appellant has offered no evidence to rebut this conclusion.
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
it is the decision of the EEOC to AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. �l6l4.604(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 this 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 this 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 this 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:
Nov 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations