0120102851
09-29-2010
Edward M. Gawronski, Complainant, v. Christopher J. Scolese, Acting Administrator, National Aeronautics and Space Administration (Kennedy Space Center), Agency.
Edward M. Gawronski,
Complainant,
v.
Christopher J. Scolese,
Acting Administrator,
National Aeronautics and Space Administration
(Kennedy Space Center),
Agency.
Appeal No. 0120102851
Hearing No. 510-2009-00164X
Agency No. NCN-08-KSC-986
DECISION
On June 23, 2010, Complainant filed an appeal from the Agency's May 17, 2010, final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented in this case is whether Complainant has established that the Agency discriminated against him based on his age and race when he was not selected for the position of Accountant, GS-0510-14, under vacancy announcement number KS08C0160.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Systems Accountant, GS-0520-13, at the Agency's Kennedy Space Center (KSC) facility in Florida. He applied for the position of Accountant, GS-14, and was found to be among one of three of the best-qualified candidates. The position required one year of specialized experience, including competencies such as coordinating and implementing financial internal controls and quality assurance, assessing financial business processes, serving as audit liaison, and conducting internal reviews. Complainant believed that he was qualified for position because he had extensive experience in internal control and quality assurance, and had worked in the internal Control Office at KSC for nine years. Complainant had performed audits for the entire Center, as well as financial and business process reviews. He also held a Bachelor of Science (BS) degree in Accounting. Additionally, Complainant served for two years and six months as an Internal Revenue Service Agent and as a Medicaid Fraud Auditor for the State of New York. Complainant had worked for 11 years as a Systems Accountant with KSC and had knowledge of various NASA financial systems. He also had worked for eight years with the Naval Ordinance Test Unit, where he did accounting, budgeting, quality assurance, audits and other work with financial systems.
Complainant and the two other best-qualified applicants were interviewed by a recommending panel for the position. The panel consisted of the selecting official, two employees, and a nonvoting Human Resources person who served as an observer. Following the interviews, the panel decided that two of the applicants were more qualified for the position than the third applicant. A second round of interviews was held. Complainant was not included in this interview. A Black male in his early 40s was selected for the position. Complainant maintained that he was more qualified for this position than the selectee. Complainant noted that the selectee had worked as a Systems Accountant and had spent the past 11 years doing systems administration work involving software for financial systems and reviewing software problems. The selectee had also done some internal control work while in the Business Office. However, Complainant believed that his skills were more relevant to the position in question. Further, Complainant maintained that, based on his race and age, the selectee had been given favorable assignments so that he would get the position. Moreover, Complainant alleged that the Agency had a policy of not promoting older White males.
On November 10, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and age (54) when, on or about September 5, 2008, he was not selected for position of Accountant, GS-0510-14, under vacancy announcement number KS08C0160.
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 timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the Agency explained that a panel was convened in order to interview the applicants. The three best-qualified applicants were asked the same questions and ranked and rated based on their responses. The rating panel found that two of the applicants had been closely rated. As such, these two applicants underwent another round of interviews. Complainant had not been as highly ranked as the other two applicants so he was not included in the second interview. The selection panel selected a Black male in his 40s for the position.
The Agency found that, assuming that Complainant had established a prima facie case of discrimination as to race and age, the Agency had articulated a legitimate nondiscriminatory reason for its action; namely, that Complainant was not selected for the position because he did not interview well and did not have recent experience with internal controls and quality assurance work; while the selected applicant had that experience and was found to be more qualified because he had been performing the duties that were required for the GS-14 Accounting position. The Agency also found that Complainant failed to show that the selectee had been given more favorable assignments in order to prepare him for the position based on his race and age. The Agency observed that Complainant had failed to provide any evidence showing that it had a policy of not promoting older White males. The Agency found that Complainant failed to show that the Agency's reasons for not selecting him were pretext for discriminatory animus based on his race and age.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the selectee was given GS-14 duties while he was a GS-13, which gave him an advantage for the position. Complainant also contends that his answers were not very specific during this interview because he was interviewing for two other GS-14 Lead Accountant positions at the same time during this interview. He maintains that he was allowed only an hour to complete the interview, and therefore he had to be brief. Additionally, Complainant indicates that one of the interviewers was 15 to 20 minutes late for the interview. Complainant contends that this interviewing condition was unique to him. Complainant also contends that objective reasons have not been given as to why Complainant did not do as well in the interview as compared to the other applicants. Further, he contends that the interviewers failed to use follow-up questions in order to see if Complainant had the requisite knowledge for the position.
Complainant maintains that the Agency did not give exact reasons as to why the selectee was more qualified than he was. Complainant asserts that he was more qualified than the selectee because he had many more years of experience than the selectee. Complainant also contends that he was unfairly excluded from the second interview panel and that there is a pattern and practice at the Agency of not selecting older White males.
The Agency did not file a reply to the appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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). Once complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts back to the complainant to demonstrate by a preponderance of the evidence that the agency's reason(s) for its action was a pretext for discrimination. At all times, complainant retains the burden of persuasion, and it is his/her obligation to show by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
Although the initial inquiry in a discrimination case usually focuses on whether the petitioner has established a prima facie case, following this order of analysis is unnecessary when the agency has articulated a legitimate, nondiscriminatory reason for its actions. See Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from whether the petitioner has established a prima facie case to whether he has demonstrated by a preponderance of the evidence that the agency's reasons for its actions merely were a pretext for discrimination. Id.; see also Aikens, 460 U.S. at 714-17.
Under the ADEA, it is "unlawful for an employer...to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. � 623(a)(1). When a Complainant claims that s/he was subjected to unlawful age discrimination, "liability depends on whether the protected trait of age actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [Complainant's] age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id.
In the instant complaint, the Commission finds that, even if we assume arguendo that Complainant established a prima facie case of discrimination based on race, and age, the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, the Agency explained that the selectee was chosen over Complainant because he responded to the interview questions more completely, whereas Complainant was not able to address the needs of the position with as much detail or certainty as the selectee had. Moreover, the selectee's experience and current job duties mirrored the requirements of the position, while Complainant had not been involved in internal controls and quality assurance work for many years.
To show pretext, Complainant maintains that he is more qualified for the position than the selectee. In a nonselection case, pretext may be shown by a showing that Complainant's qualifications are observably superior to those of the selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981). The Agency explained that Complainant and the selectee were not equally qualified for the position, in that the selectee served as the Technical/Team lead for the KSC CFO Internal Quality Control/Quality Assurance Branch. The selectee developed and implemented improved business processes, represented KSC on the Agency's internal controls working group, and performed audit liaison duties for various external audit activities. The Agency indicated that all of these skills were required for the Accountant, GS-14 position. In contrast, Complainant's position was focused primarily on providing accounting support to the Payroll and Job Labor functional areas. Even though Complainant and the selectee had similar educational backgrounds, with both possessing degrees in Accounting, the disparity in their immediate job duties put the selectee in the forefront. In this case, we find that Complainant has not shown that the disparities in qualifications between him and the selectee are "of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question." Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 546 U.S. 454 (2007).
Further, Complainant contends that the selectee was preselected for the position. Specifically, Complainant maintains that the selectee was treated more favorably based on his race and age when he received internal control and quality assurance assignments outside his position description, which gave him an advantage for getting this position. With regard to the contention of preselection, we note that preselection, unless based on unlawful discrimination, is not prohibited. Goostree v. State of Tenn., 796 F.2d 854 (6th Cir. 1986). We find that Complainant has provided no evidence that shows that discriminatory animus was involved with the selection for this position. Further, we find that Complainant has not provided any evidence other than his own conclusory statements that the selectee was given more favorable assignments and/or that there was a pattern or practice of discrimination against White males over the age of 50. Therefore, we find that Complainant has not shown that the Agency's articulated legitimate, nondiscriminatory reason was pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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
September 29, 2010
Date
2
0120102851
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102851