01a52622
08-30-2005
Elmer E. Davis, Complainant, v. John W. Snow, Secretary Department of Treasury (Internal Revenue Service), Agency.
Elmer E. Davis v. Department of Treasury
01A52622
August 30, 2005
.
Elmer E. Davis,
Complainant,
v.
John W. Snow,
Secretary
Department of Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01A52622
Agency No. 03-2543
Hearing No. 150-2004-00335X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a Revenue Officer, GS-11, in the
Plantation, Florida office, filed a formal EEO complaint on September 6,
2003, alleging that the agency discriminated against him on the bases
of race (Black) and sex (male) when on June 5, 2003, he was not selected
for either of two Revenue Officer, GS-12, positions as he failed to rank
as Best Qualified. Complainant along with other applicants applied
for two Revenue Officer, GS-12, positions pursuant to two vacancy
announcement numbers. Complainant along with other applicants were
determined to be eligible and qualified for the positions in question.
The Ranking Official then ranked the applicants using the procedures found
in Article 13 of the collective bargaining agreement. Based on these
numerical scores, the Ranking Official then submitted the names of the
four highest ranked applicants to the selecting officials for each of the
vacancy announcements. Complainant missed the top four Best Qualified
list on both vacancy announcements by two points. Accordingly, the
selecting official only considered the top four Best Qualified candidates.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a bench decision on
December 17, 2004, finding no discrimination. The AJ concluded that
complainant established a prima facie case of sex discrimination but
failed to establish a prima facie case based on race. However, the AJ
found that the agency articulated legitimate non-discriminatory reasons
for complainant's ranking score. Additionally, the AJ concluded that
complainant failed to meet his burden of establishing that the agency's
reasons were pre-textual because his application package did not show
that he was plainly superior to the applicants who scored higher and
made the Best Qualified list.
On appeal, complainant argues that his customer service skills, nine
years of experience, and level of formal education should have been
given more weight in the ranking process. In particular, he states how
his education and training exceed that of one of the selectees. He also
asserts that the agency has a system of ranking applicants that puts
blacks and minorities at a disadvantage. Further, complainant states that
the record of promoting blacks shows that blacks are rarely promoted.
He describes how only one black male has been promoted to Revenue
Officer in the past eight years at the time complainant applied for
these positions. In response, the agency explained how formal education,
such as a college degree, was not specifically required for promotion
to a GS-12 Revenue Officer position. Additionally, the agency supported
the AJ's finding that the ranking of applicants was consistent with the
guidelines provided to the Ranking Official and thus correctly held that
no unlawful motivation could be inferred from the Ranking Official's
scoring of applications in accordance with the collective bargaining
agreement. The agency agreed with the AJ's conclusion that complainant
failed to show pretext because he did not prove that he was plainly
superior to any of the applicants who made the Best Qualified list.
In responding to complainant's assertion about the agency's record of
rarely promoting blacks, the agency argues that complainant relies on
anecdotal evidence of his previous non-selections and bald assertions
that have no statistical basis. The agency's final order implemented
the AJ's decision, and the agency requests that we affirm its final order.
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.
First, we find that AJ properly analyzed complainant's disparate treatment
claim under the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
further defined in Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248
(1981). Under this standard, complainant must first establish a prima
facie case by presenting factual evidence from which an inference
of discrimination might reasonably be drawn. To rebut the adverse
inference from a prima facie showing, the agency need only articulate
a legitimate nondiscriminatory reason for its action. Complainant would
have an opportunity to challenge this legitimate nondiscriminatory reason
as merely a pretext to mask the discrimination of which complainant
complained.
While complainant established a prima facie based on sex, we agree
with the AJ's conclusion that a reasonable fact-finder could not draw
an inference of discrimination based on race because the selecting
official did not know of complainant's race or the race of any of
the candidates before the selection. In a non-selection case, one
of the ways a complainant can establish pretext is by showing that
his qualifications were plainly superior to those of the selectee.
See Wasser v. Department of Labor, EEOC Request No. 05940058 (Nov. 2,
1995); Bauer v. Bailar, 647 F. 2d 1037, 1048 (10th Cir. 1981). Here,
we agree with the AJ's conclusion that complainant also failed to
establish pretext by demonstrating that his qualifications for the
position are plainly superior to those of the persons recommended as
best qualified. The Ranking Official testified that neither years of
service or formal education were factors in the ranking for the Revenue
Officer position. The Ranking Official testified that the primary
factors in scoring the applicants included exposure to collection
cases involving the investigation and analysis of nominee liens,
alter egos, transferees and complex civil suits as set forth in the
applicable Position Description. The Ranking Official specifically
noted that complainant's application never indicated that he had been
involved in cases such as ones involving alter ego and nominee liens
nor had he been involved in complex civil suits. The AJ addressed how
complainant does not dispute that his application was deficient in these
aspects nor does he dispute that he cut and pasted his application from a
previous application for an unrelated tax specialist position. Further,
complainant stated in his affidavit that he has no reason to believe
that the Ranking Official discriminated against him which supports the
AJ's finding that complainant failed to prove pretext.
Lastly, on appeal, complainant asserts that the system of ranking
applicants puts blacks and minorities at a disadvantage. He adds that
applicants on the Best Qualified list are overwhelming white females
and describes how blacks are rarely promoted as evidenced by only one
black male being promoted to Revenue Officer in the past eight years.
We agree however with the AJ in finding that complainant failed to provide
any persuasive evidence to show that this information is statistically
correct. Complainant's anecdotal evidence is insufficient to establish
that the agency's ranking system prevented black males from being promoted
to Revenue Officer positions.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's race or sex. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final order.
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
August 30, 2005
__________________
Date