0120100253
04-12-2010
Clarence A. Gibson, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Clarence A. Gibson,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120100253
Hearing No. 430-2008-00236X
Agency No. HHSNIH03272007
DECISION
On October 20, 2009, complainant filed an appeal from the agency's
September 22, 2009 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
During the relevant period, complainant worked as a Property Disposal
Specialist at a North Carolina facility of the agency. Complainant filed
an EEO complaint alleging that the agency discriminated against him on
the bases of race (Black), sex (male), and reprisal for prior protected
EEO activity when, in May 2007, it failed to select him for a GS-11
Inventory Management Officer position. In his complaint, complainant
stated "I feel that I was the most qualified candidate based on my past
and previous work experience, education and proven leadership abilities."
The agency conducted an investigation of complainant's claim and;
subsequently, issued him a report of investigation and notice of right
to request a hearing before an EEOC Administrative Judge (AJ) or an
immediate final agency decision. Complainant requested a hearing.
During the hearing, the position selecting official (S1) stated that she
and her supervisor sought knowledge of project and supply management, good
computer skills and the ability to learn new skills quickly, and effective
and efficient leadership skills. S1 stated that both complainant
and the candidate selected (C1) had good interviews, but she noted
that C1 spoke of a supportive philosophy for subordinate employees and
identified a specific departmental problem area and a potential solution.
S1 stated that, for internal applicants, she also considered her personal
experiences with each candidate and recalled positive experiences with C1.
Further, S1 stated that custodians submitted a recommendation letter for
complainant that let her know that they appreciate him, but she did not
consider the letter in her selection.
Following the hearing, the assigned AJ issued a decision finding no
discrimination. Specifically, the AJ found that complainant failed to
show "that anything other than the overall selection criteria (resume,
interview, and observations of work performance) motivated the agency
not to select him for the position." The AJ concluded that complainant
did not show that he was "plainly superior" to the selectee, C1.
Subsequently, the agency issued a final order adopting the AJ's finding.
The instant appeal from complainant followed. On appeal, complainant
stated that S1 disregarded a recommendation as to his work ethic which
was signed by 40 coworkers, he trained most of the department custodians
and they sought his guidance with problems, a more specific verbal
response during an interview does not indicate better qualifications
and experience is a better indication of leadership, and management is
exaggerating C1's contributions to cover lies. Summarily, complainant
stated that his qualifications are plainly superior to C1's.
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.
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 Construction
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 Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In the instant matter, we conclude that complainant failed to rebut the
agency's explanation for its action (nonselection) with credible evidence.
There is simply insufficient evidence to conclude that complainant's
nonselection was motivated by unlawful animus rather than the criteria
outlined by the selecting official. Accordingly, we find that complainant
failed to show pretext. Based on a thorough review of the record,
we AFFIRM the final agency decision
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 12, 2010
__________________
Date
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0120100253
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100253