01a34260
01-14-2005
Grubert R. Markley, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Grubert R. Markley v. Department of the Treasury
01A34260
1/14/05
Grubert R. Markley,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A34260
Agency No. 01-1054
Hearing No. 210-A2-6015X
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 finding no discrimination.
I. BACKGROUND
The record reveals that complainant, a GS-14 Attorney in the Office of
Chief Counsel of the Internal Revenue Service in Chicago, IL, filed a
formal EEO complaint on December 9, 2000 alleging that the agency had
discriminated against him on the bases of race (White), sex (male), age,
and reprisal for prior EEO activity when on September 19, 2000 he was
not selected for the position of GS-905-15 Area Counsel (Criminal Tax)
under Vacancy Announcement No. 00-52.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). At the hearing, complainant dropped his claim
of age discrimination. Following a hearing, the AJ issued a decision
finding no discrimination.
The AJ found that complainant failed to establish by either direct or
circumstancial evidence that he was discriminatorily non-selected.
The AJ found that although complainant successfully established a
prima facie case of discrimination, he failed to show that the agency's
nondiscriminatory reason for his non-selection, namely, that he was less
qualified than the selectee, was pretextual.
On appeal, complainant argues that the AJ abused his discretion and was
not impartial. He also argues, on several grounds, that the agency's
nondiscriminatory explanation for his non-selection is pretextual.
He contends that his qualifications were plainly superior to the
selectee's and that the agency's proffered explanation was devised
only as a strategy for defending against his complaint. He also notes
that the selectee was noncompetitively selected to temporarily fill the
position and that no interviews were conducted during the competitive
selection process. Finally, complainant argues that a notation of the
complainant's race on her application, the influence of the agency's
affirmative action policy, and retaliatory statements made by one
selecting official a year after the selection are direct evidence of
the selecting officials' discriminatory intent.
The agency contends that the AJ did not abuse his discretion and that
substantial evidence supports the AJ's finding that complainant failed
to show that the agency's nondiscriminatory reason was pretextual.
II. LEGAL STANDARD
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 United
States 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 Department 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).
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.
III. ANALYSIS
We find that the AJ did not abuse his discretion and that substantial
evidence supports his finding of no discrimination.
Procedural Issues
We find that the AJ acted within his discretion by not allowing
complainant to amend his complaint to include a claim of retaliation
based on statements made one year after his non-selection. Pursuant to
29 C.F.R. � 106(d), complainant may at the AJ's discretion amend his
complaint, even after requesting a hearing, to include issues that
are like or related to those raised in the complaint. The allegation
complainant sought to include does not state a claim by itself. It merely
consists of retaliatory statements made by one of the selecting officials
to a third party a year after complainant's non-selection. No personnel
action or harassment took place. The AJ decided appropriately to consider
the statement as evidence pertaining to complainant's non-selection but
to refuse to allow complainant to include it as a separate claim.
Complainant also appealed the AJ's denial of his request that sanctions
be ordered against the agency for failure to respond to complainant's
discovery request. Prior to requesting a hearing and upon reviewing the
investigator's file, complainant requested answers to interrogatories and
production of documents from the agency. When appropriate, sanctions
can be issued for failure to respond to discovery. 29 C.F.R. �
1614.109(f)(3). We do not find them appropriate here. Prior to
requesting a hearing and appointment of an AJ, it is the agency's duty
to develop an impartial and appropriate record. 29 C.F.R. � 108(b).
An appropriate factual record is one that allows a reasonable fact
finder to draw conclusions as to whether discrimination occurred. Id.
After reviewing the record thoroughly, we find that the agency fulfilled
its investigatory duty. Complainant's requests would have been more
properly issued with the consent of the AJ during pre-hearing discovery.
Even assuming they had been, the AJ would not have abused his discretion
by denying complainant his requests for discovery. The parties are
entitled to reasonable development of evidence on matters relevant to
the issues raised in the complaint. 29 C.F.R. � 109(d). We find that
complainant's right to development of relevant evidence was satisfied
by the investigation and the hearing.
Complainant also argues that the AJ was not impartial, citing an instance
during the hearing in which the AJ interjected during complainant's
cross-examination of an agency witness in order to clarify the witness's
testimony. Complainant argues that the AJ's intent was not to clarify
but to improperly assist the witness in giving the answer the AJ wanted
to hear. An AJ has broad discretion over development of the record once
a hearing is requested. 29 C.F.R. 1614.109(a). After a review of the
hearing transcript, we find that the AJ did not abuse his discretion.
The Merits
Substantial evidence supports the AJ's finding of no discrimination
in complainant's non-selection. The selecting officials (selectors)
consistently and uniformly stated that the selectee was better qualified
than complainant. They emphasized in particular that selectee had
greater and more recent experience in criminal tax litigation. They also
expressed concerns for complainant's manageability and litigation skills.
To show that the agency's reasons were pretextual, complainant primarily
argued that his qualifications were plainly superior to selectee's.
He emphasized his extensive trial experience and the selectee's lack
thereof. In order to successfully prove discrimination in this manner,
complainant must show that his qualifications were �so plainly superior
as to require a finding of pretext.� Henry v. Department of Labor, EEOC
Appeal No. 01911925 (November 25, 1991). The AJ reasonably concluded that
complainant failed to meet this burden. The AJ found that the selectors'
based their decision on selectee's more recent experience in criminal
tax litigation, emphasizing the subjective nature of the selection
decision and the necessary deference given to the selectors' preferences.
Complainant argued in response that the selectors' emphasis on recent
experience was not credible because that explanation was devised after
the selection process, merely for the purpose of defending against this
complaint. Substantial evidence supports the AJ's conclusion, however,
that the selectors did indeed consider the recency of complainant's
experience during the selection process. The record reveals that
although the selectors did not mention recent experience in their initial
announcements regarding their selection decision, when later asked to
specifically compare the selectee to complainant recent experience was
the primary reason they articulated for their decision. The selectors'
initial explanations did not include recency of experience because it
was merely intended to announce whom they had selected, rather than
compare the selectee to complainant.
Even if recent experience was a post hoc justification, substantial
evidence in the record supports the AJ's finding that the agency credibly
articulated several other nondiscriminatory reasons for complainant's
non-selection, including concerns about complainant's manageability and
his litigation skills.
A complainant's case is strengthened if evidence exists showing that
the selection process was somehow suspect. �Personnel decisions which
are idiosyncratic or suspect will be subjected to heightened scrutiny.�
Allen v. Department of Veterans Affairs, EEOC Petition No. 03910034
(March 21, 1991) (citing Loeb v. Textron Corp., 600 F.2d 1003, 1012,
n. 6 (1st Cir. 1979)). Complainant argues that the selection process was
suspicious because the selectors did not conduct interviews. He points
to two other selections for comparable positions in different regions
in which interviews were conducted.
Agency officials explained, however, that they did not feel that
interviews were necessary for their selection in complainant's region.
The selectee had been successfully serving temporarily in the position
for a year. Thus, upon judging her qualifications to be best among
the applications, the selectors opted not to conduct interviews
because they knew the selectee could perform the duties of the job.
Complainant objected, arguing that the selectee was unfairly preselected
for the position. He did not, however, present evidence to prove that
discriminatory animus was the motivation for her alleged preselection.
The AJ's, therefore, properly found that the selectee's temporary
appointment did not taint the competitive selection process. McAllister
v. U.S. Postal Service, EEOC Request No. 05931038 (July 28, 1994).
Complainant also suggested that the agency's affirmative employment
policy may have been misunderstood by the selectors and caused them
to have an illegal preference for a black female despite his superior
qualifications. Substantial evidence exists in the record, however,
to support the AJ's finding that it did not. Two selecting officials
testified that they were not even aware of the policy. The record was
also inconclusive as to whether the policy applied to the position for
which complainant sought selection.
Complainant also notes that the selectee's race was noted on her
application and argues that this indicates the selectors' desire to
hire a black female. Substantial evidence exists in the record, however,
to support the AJ's conclusion that the notation of the selectee's race
on her application did not prove discriminatory intent. The AJ noted
that because one of the selectors was unaware of complainant's race,
he had no way of knowing whether complainant was of a different race
than the selectee. One selector also testified that in the process of
reviewing the numerous applications for the position he did not notice
the notation of selectee's race on her application.
The AJ also reasonably concluded that one selector's statement evincing
an intent to retaliate against complainant for the instance complaint,
made a year after the selection decision, was not probative of her intent
at the time of the selection. The AJ emphasized that the statement was
made an entire year after the fact and that it involved only one of four
selection board members. Complainant argued that the statement shows
the selector illegally preferred a black female to hold the position
prior to the selection process, but he presents no evidence to support
that inference.
IV. CONCLUSION
The Commission, after a careful review of the record and the parties'
arguments on appeal, finds that substantial evidence exists to support
the AJ's conclusions. The AJ's finding of no discrimination is affirmed.
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
______1/14/05____________
Date