01a63510
09-28-2006
Chris D. Hutchinson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Security Service) Agency.
Chris D. Hutchinson v. Department of Defense
01A63510
.
Chris D. Hutchinson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Security Service)
Agency.
Appeal No. 01A63510
Agency No. DSS-05-014-DS-P
DECISION
Complainant, a Personnel Security Specialist, GS-0080-09, filed an EEO
complaint in which he claimed that the agency discriminated against
him in reprisal for his previous EEO activity when on June 22, 2005,
he was not selected for the position of Personnel Security Specialist,
GS-0080-09, having a full performance level of GS-11. The record reveals
that complainant was among 47 candidates for 18 positions.
The complaint was accepted for investigation. Subsequent to the
completion of the agency investigation, the agency notified complainant
of his right to request either a hearing and decision by an EEOC
Administrative Judge or an immediate final action by the agency.
Complainant did not make an election and the agency therefore issued a
final action.
The agency issued a final action dated May 2, 2006, finding that no
discrimination occurred. The agency determined that complainant set forth
a prima facie case of reprisal discrimination. The agency determined that
it articulated legitimate, nondiscriminatory reasons for its nonselection
of complainant. According to the agency, the three member interview
panel established that their evaluation criteria would consist of an
applicant's resume, an applicant's response to the interview questions,
and an applicant's supervisor's assessment of the applicant. One of the
panel members, complainant's supervisor, stated that he did not recommend
complainant as one of the best qualified applicants because his resume
and interview responses contained inaccurate information. According
to this panel member, complainant denied during his interview that he
ever received constructive criticism even though he had received such
criticism. This panel member also stated that complainant showed a lack
of attention to detail by identifying the wrong person as his then current
supervisor and some of his interview responses reflected a lack of care.
Another panel member stated that complainant's interview was not of the
caliber of the eighteen selected candidates and that he did not fare well
on the question as to why he should be selected. She further stated that
complainant did not mention his leadership experience in his resume or
during his interview. The panel indicated that it reached a consensus
on fourteen of the successful applicants and that complainant was one of
twelve candidates that were considered for the remaining four positions.
The agency determined that complainant failed to provide evidence to
demonstrate that the reasons offered by management were pretextual.
The agency stated that complainant did not demonstrate that his supervisor
influenced the other panel members not to select him because of his prior
EEO activity or that he let that activity influence his decision-making.
On appeal, complainant contends that the agency misinterpreted one
of his statements during the interview and thus erroneously concluded
that he had provided inaccurate information. As for identifying the
wrong individual as his current supervisor, complainant states that all
panel members were fully aware of who his current supervisor is and that
Resumix had not updated his current supervisor. Complainant argues that
reprisal is evidenced by a statement from one of the panel members that
the outcome of the selection would have been different had he elected to
meet with the interview panel regarding a prior non-selection instead
of filing an EEO complaint. Complainant notes that one of the panel
members indicated that she was inclined to select him for the position.
Finally, complainant denies that he received constructive criticism and
points out that his performance evaluations have been outstanding.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). For complainant to
prevail, he must first 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. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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
(2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of discrimination on the basis of reprisal.
Next, we shall consider whether the agency articulated a legitimate,
nondiscriminatory reason for its action.
The agency stated that complainant was not selected for the position
because his interview was deficient on several matters. The agency
stated that complainant's resume and interview responses contained
inaccurate information. The agency noted that complainant did not
mention his leadership experience in his resume or during his interview.
According to the agency, complainant's interview was not of the caliber of
the eighteen selected candidates and he did not provide a strong response
when he was asked why he should be selected. We find that the agency
articulated legitimate, nondiscriminatory reasons for its decision not
to select complainant.
We find that complainant has failed to refute the agency's stated
reasons for his non-selection for the position at issue. Complainant
also has not shown that his qualifications for the position at issue
were so superior to those of the selectees as to warrant a finding
that the agency's stated reasons are pretextual. See Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). Complainant maintains that one
of the panel members stated that the outcome of the selection would
have been different had complainant elected to meet with the interview
panel regarding a prior nonselection instead of filing an EEO complaint.
A review of the record, however, reveals that the panel member instead
stated that had complainant come to talk with the panel members after
the previous nonselections, he would have been provided input that he
probably could have used to improve his interview skills and the results
may have been different. We find that complainant has not shown, by a
preponderance of the evidence, that the agency's stated reasons for his
nonselection were pretext intended to mask discriminatory intent.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's decision,
because a preponderance of the record evidence does not establish that
reprisal discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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).
COMPLAINANT'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
September 28, 2006
__________________
Date