0120123539
08-28-2015
Complainant, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration (Johnson Space Center), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration
(Johnson Space Center),
Agency.
Appeal No. 0120123539
Hearing No. 460-2008-00088X
Agency No. NCN-07-JSC-A017
DECISION
On September 5, 2012, Complainant filed an appeal from the Agency's August 7, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant applied for the position of Quality Assurance Specialist at the Agency's Johnson Space Center in Houston, Texas.
On March 15, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (White) when he were not selected for the Quality Assurance Specialist position advertised under Vacancy Announcement No. JS06D0172.
On May 14, 2007, the Agency dismissed the complaint. Complainant appealed the dismissal to the Commission. The Office of Federal Operations reversed the dismissal and remanded the matter for further processing. Lanmon v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120073013 (Sept. 4, 2007).
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 Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency issued a final order adopting the AJ's August 7, 2009 decision after a hearing finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed.
By letter dated September 26, 2012, OFO notified the Agency of the appeal and that it was required to submit a copy of the entire complaint file within 30 calendar days of the Agency's receipt of the letter of notification. The Agency failed to comply with this notice, and OFO did not receive the complete complaint file in a timely manner. Therefore, on March 2, 2015, OFO issued a Notice To Show Good Cause Why Sanctions Should Not Be Imposed (Notice) requesting that the Agency submit the entire complaint file, including the hearing record and decision by the AJ within 30 calendar days of receipt of the Notice. In the Notice, OFO warned that it may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the Agency; (2) consider the matters to which the requested information pertains to be established in favor of the Complainant; (3) issue a decision fully or partially in favor of the Complainant; or (4) take such other action(s) as appropriate. The Agency provided the Commission the complaint file on March 19, 2015. The record is now complete for review.
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.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record indicated that the AJ held a hearing on the matter. In addition, she considered all documents provided by the parties including the Agency's report of investigation, documents provided during discovery, evidence and testimony provided during the hearing, and arguments presented by the parties at the conclusion of the hearing. In her bench decision, the AJ found that the Agency's Human Resources Specialist (Specialist) was credible in her testimony regarding the procedures followed by the Agency pertaining to the selection. The AJ also determined that the Selecting Official was also credible when he testified about the selection process. The Specialist indicated that that she reviewed the applicants and eliminated those who did not meet the minimum qualifications for the position in question. The AJ noted that the Specialist indicated that there were mistakes made during the application process but the AJ found that the mistakes were made by the Specialist and were typographical. Both Complainant and the selectee (Selectee) were placed on the "cert list" and rated as at least meeting the minimum qualifications for the position in question past the review of the Specialist as well as the Agency's Subject Matter Expert. Both Complainant and the Selectee were awarded the ten-point veteran's preference.
The list of 11 candidates, including Complainant and the Selectee, were forwarded to the Selecting Official who testified that he researched how the interview should be conducted. He reviewed the cert list and took the time to review the candidates' resumes carefully. Following the interviews, the Selecting Official believed the Selectee was better qualified for the position than Complainant. The AJ indicated that she found the Selecting Official to be "not only sincere in his testimony" but "credible in terms of his explanation for why he thought the Selectee" was better for the position. The Selecting Official cited the Selectee's previous experience as a quality assurance inspector as well as oversight of contactors. The Selecting Official believed that the Selectee was able, during the interview, to clarify and build upon his resume making it helpful for the Selecting Official to choose the Selectee for the position. Finally, the Selecting Official testified that he followed up on the references for both candidates. The Selectee's references were outstanding while Complainant's were not as high. Based on the evidence, the AJ found that the Agency provided legitimate, nondiscriminatory reasons for its decision to select the Selectee. Upon review, we find that the record supports the AJ's determination.
The AJ then turned to Complainant to establish that the Agency's reasons were pretext. The AJ noted that Complainant challenged whether the Selectee should have been deemed minimally qualified for the position. However, the AJ indicated that the record clearly showed that both candidates met the requirements for the position. The AJ determined that Complainant failed to establish that the Agency's reasons were pretext for discrimination. In a non-selection case, pretext may be shown by a showing that Complainant's qualifications are observably superior to those of the Selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Upon review of the record, we find that the AJ correctly held that the Selectee had attributes that justified his selection and that Complainant's credentials were not observably superior to the Selectee's credentials so as to warrant a finding of pretext. As such, we find that the AJ correctly concluded that Complainant failed to establish that he was subjected to race-based discrimination.
CONCLUSION
Based on a thorough review of the record, the Commission AFFIRMS the Agency's Final Order implementing the AJ's Bench Decision.
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 28, 2015
__________________
Date
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