01982536
03-30-1999
Eugene Lindsey, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Eugene Lindsey, )
Appellant, )
) Appeal No. 01982536
v. ) Agency No. 96-1980
) Hearing No. 130-97-8044X
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. Appellant alleges he
was discriminated against on the basis of race (Black) when on June 11,
1996, he was not selected to the position of GS-9 Dental Laboratory
Technician (GS-9 DLT position). The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
The record reveals that during the relevant time, appellant was
employed as a GS-8 Dental Laboratory Technician at the agency's Jackson,
Mississippi facility. Appellant and a Caucasian co-worker applied for the
GS-9 DLT position when it was announced pursuant to Vacancy Announcement
No. 96-59.<1> After he was not selected, and believing he was a victim
of discrimination, appellant sought EEO counseling and, subsequently,
filed a formal complaint on August 6, 1996. At the conclusion of the
investigation, appellant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD)
finding discrimination.
The selecting official (SO) created the method of selection whereby
over a period of several months, the quality of porcelain dental crowns
made by the applicants would be evaluated by the facility's six dentists
(Dentist Panel) on nine criteria, each awarded a number between (1) and
(5). Thus, the maximum score each panel member could award would be 45
points (9X5) and the maximum score an applicant could receive from the
panel on any specific crown sample was 270 points (6X45). Additionally,
the Dentist Panel rated the applicants on their knowledge, skills,
and abilities. Testimony at the hearing indicated that requests for
crowns were submitted to the candidates by dental assistants. Upon a
candidate's completion of a crown sample, it was submitted to SO,
who graded the work himself, labeled it such that the candidate would
not be identified, and distributed the sample to the members of the
Dentist Panel for their rating. Thus, the porcelain crown evaluations
were purportedly blind, in that the individual dentists were not aware
of whose work they were evaluating.<2> At the conclusion of the trial
period, each applicant's score was totaled, and the one with the highest
score was awarded the GS-9 DLT position.
Testimony at hearing revealed that appellant submitted a total of six
(6) porcelain crowns for evaluation, while the selectee submitted ten
(10). SO asserted that the assignment of porcelain crowns was voluntary
in nature, and that each applicant could accept or decline any given
assignment as it was presented by the dental assistants. In contrast,
appellant testified that he believed that assignments were to be divided
equally between himself and the selectee. Appellant thus alleged that he
was not selected because the selectee submitted four (4) additional crowns
for which he received scores. Testimony at hearing further revealed that
SO, in an attempt to ensure fairness in the selection process, subtracted
the four highest crown submission scores that the selectee received so
that both candidates were judged on the basis of six crown samples scores.
Prior to the hearing, the parties stipulated to the fact that appellant
established a prima facie case of race discrimination. In his RD, the
AJ concluded that the agency articulated a legitimate, nondiscriminatory
reason for appellant's non-selection, namely, that he was not selected
because his total score, 862, was lower than that of the selectee, who
received a score of 1193. The AJ further found, however, that appellant
proved that the reasons set forth for his non-selection were pretextual,
as he was not given an equal opportunity to compete for the position as
the selectee because of the fewer number of crowns on which he was judged.
The AJ concluded that with respect to the assignment of porcelain crowns,
appellant's testimony was more credible �based upon his (Complainant's)
observed demeanor, while testifying at the Hearing, when compared with
that of [SO], as further correlated with the relative qualifications
of both candidates (excluding the sample scores).� (parentheticals in
original; citations omitted) As remedial relief, the AJ suggested that
appellant be provided the opportunity to submit four additional crown
samples to the panel for evaluation to see if his total score would be
greater than that of the selectee.
The agency's FAD rejected the findings of the AJ and found no
discrimination. The agency acknowledged that appellant submitted four
less crowns than the selectee, but argued that this difference was not
the result of discriminatory animus. To the contrary, in an attempt
to ensure fairness in the selection process, SO subtracted the four
highest scores from the selectee's ten crown submissions. As a result,
both appellant and the selectee were judged on the basis of submission
of six crown samples. Moreover, those scores credited to the selectee
were based on his six worst submissions. The agency further found that
even if appellant were to receive perfect scores on the four additional
crown samples to be submitted as per the AJ's Order, his score would
not have exceeded that of the selectee. Because the agency demonstrated
that under no possible scoring scheme would appellant have scored higher
than the selectee, and because there was no showing, notwithstanding
appellant's misunderstanding with respect to the crown assignments,
that racial animus played a part in the selection process, the agency
concluded that the articulated reason proffered by SO was not a pretext
for race discrimination.
After a careful review of the record, the Commission finds that the AJ
erred in finding that appellant was discriminated against when he was
not selected for the GS-9 DLT position. SO testified at the hearing
that the selection was made on the basis of six porcelain crown samples
submitted by each applicant; i.e., all of appellant's submissions, and the
six lowest-rated crown samples submitted by the selectee. Any advantage
obtained by the selectee by his submission of additional crown samples
was effectively eradicated by the subtraction of his four highest-rated
crown samples from his total score. Moreover, as noted by the agency,
even if appellant were provided the opportunity to submit four additional
crown samples for evaluation, his score would not have exceeded that of
the selectee. The AJ indicated that he believed that appellant met his
burden of showing the agency's reason was pretext based on the credibility
determinations of SO and appellant. However, an AJ may not insulate his
or her findings from review by calling them credibility determinations.
Rash v. Department of the Navy, EEOC Request No. 05920717 (March 11,
1993). Credibility determinations made by an AJ may be rebutted by an
evidentiary showing through documents or other extrinsic evidence that the
credibility determination is (1) erroneous, (2) not based on testimonial
inferences, or (3) not supported by the record. Gathers v. United States
Postal Service, EEOC Request No. 05890894 (November 9, 1989); Rash, infra.
In the instant case, we find that the record does not support the AJ's
credibility determination concerning appellant's opportunity to compete
for the GS-9 DLT position. In reaching this conclusion, we note that the
AJ's reliance on appellant's testimony that he misunderstood the process
by which crowns were to be assigned, is misplaced, and insufficient to
establish that the selection process was tainted with discriminatory
animus. This conclusion is especially evident where record evidence
establishes not only that appellant would not have been selected, but
that SO took actions detrimental to the selectee's candidacy in order to
ensure fairness, and countermanded any imbalance which resulted from the
selectee having submitted more crown samples than appellant. Appellant
has not provided any evidence of racial bias by any panel member or by SO.
Accordingly, we find that the agency's decision finding no discrimination
was proper, and it is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 30, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1The Commission notes that a third
employee also applied for the position, but, prior to the
conclusion of the selection process, this employee accepted
disability retirement.
2Testimony at hearing indicated that at all times, at least two dentists
(SO and the dentist for whom the crown was created) were aware of whose
work they were grading. Further, at least one dentist acknowledged
that he could distinguish the crowns made by each of the selectees.
No other evidence was submitted at the hearing which indicated that
the other members of the Dentist panel were aware of whose samples they
were grading.