01a54789
12-22-2005
Harvey E. Kohl, Porter J. Brown, Craig P. Warne Complainants, v. Spencer Abraham, Secretary, Department of Energy (Western Area Power Administration), Agency.
Harvey E. Kohl, Porter J. Brown & Craig P. Warne v. Department of Energy
01A54788
December 22, 2005
.
Harvey E. Kohl, Porter J. Brown, Craig P. Warne
Complainants,
v.
Spencer Abraham,
Secretary,
Department of Energy
(Western Area Power Administration),
Agency.
Appeal Nos. 01A54788, 01A54789 & 01A55123
Agency Nos. 04-4982-WAPA, 04-4981-WAPA, & 04-4988-WAPA
Hearing Nos. 320-2004-00381X, 320-2004-00382X, & 320-2004-00384X
DECISION
Complainants timely initiated appeals from the agency's final order
concerning their equal employment opportunity (EEO) complaints of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The
appeals are accepted pursuant to 29 C.F.R. � 1614.405 and are consolidated
for joint processing in accordance with 29 C.F.R. � 1614.606. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that at the time of the events at issue Complainant
Kohl was a Substation Journeyman Electrician at the agency's Cheyenne
Maintenance Facility; Complainant Brown was an Electrician � Wage
4, also at the Cheyenne Maintenance Facility, and Complainant Warne
was Foreman I � Electrician, at the Desret Southwest Region facility.
Each complainant filed his formal EEO complaint respectively on February
17, 2004, February 16, 2004 and on February 18, 2004. They each alleged
that the agency discriminated against them on the basis of age when they
were not selected for the position of Electrician-Foreman II, Vacancy
Announcement No. RMR-03-034-MP. The dates of birth of the complainants
are as follows: Complainant Kohl - April 27, 1943, Complainant Brown -
November 11, 1944, and Complainant Warne - December 20, 1943.
At the conclusion of the investigation, complainants received copies
of their investigative reports and each requested a hearing before an
EEOC Administrative Judge (AJ). The AJ consolidated the complaints and,
following the hearing, issued a decision finding no discrimination.<0>
The AJ concluded that complainants established a prima facie case of age
discrimination because the selectee was younger than the complainants.
However, the AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
Selecting Official (SO) chose the selectee for the position because he
had performed the best during the interview. The interview panel agreed,
the selectee had indeed given the best interview. The AJ determined that,
unlike complainants, the selectee had prepared himself thoroughly for
the interview. The selectee had taken a six month detail to Loveland,
worked in other divisions at the agency to acquire experience, obtained
a Master's license, participated in the New Leaders Program, acted
as a Foreman, and taken a training course in Washington, D.C. The AJ
also found that the SO chose the selectee because complainants lacked
some necessary technical skills and doubling test experience that the
selectee had, and because references for the complainants revealed that
they lacked interpersonal skills. These references identified Complainant
Kohl as having a �bad temper,� Complainant Brown as being an �agitator,�
and Complainant Warne as being a � loner.�
The AJ further found that complainants did not establish that more
likely than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found
no proof that the SO had given the selectee preferential treatment.
The AJ determined instead that all applicants were treated similarly.
Although it was clear that complainants had many more years of work
experience, the AJ did not find that complainants proved they were
plainly superior to the selectee in terms of their qualifications.
The agency's final order implemented the AJ's decision.
On appeal, complainants contend that the AJ erred because he failed to
address material facts that should have tipped the scales in their favor.
First, the AJ did not discuss why the SO's supervisor met with each of
the complainants after the interview to tell them how hard it was to
work for someone younger. Second, the AJ did not discuss why it was
that the selectee was allowed to attend a management training course
normally reserved for new managers and foremen who are already hired.
This course, according to complainants, gave the selectee an unfair
advantage going into the interview that they were not allowed to have.
Third, complainants argue that they were never allowed to prepare for
the interview as the selectee. He took time off work the day before
the interview, they did not. Fourth, Complainants Kohl and Brown
indicate that it is contradictory that they would be charged with lacking
interpersonal skills when they received good performance evaluations for
their work and conduct. Lastly, complainants allege improper conduct in
disclosing to the selectee the interview questions before the interview
so he would provide better responses.
In response, the agency denies the allegations of improper conduct.
The agency maintains that the AJ was correct to find that complainants
failed to prove pretext. The agency points out that the SO and the
interview panel unanimously agreed that the selectee gave the best
interview out of all the applicants to the position. With regard to
the specific allegations, the agency indicates that complainants showed
no proof of malfeasance or that the SO somehow gave preference to the
selectee. With regard to the management course that the selectee took and
that the others did not, the agency points out that complainants could
have applied for it, but did not. Only Complainant Brown applied for
the course, but he was rejected because his application was incomplete.
Moreover, the agency indicates that complainants could have taken
annual leave to prepare for the interview as the selectee had done,
but they never requested time off. As for the performance appraisals,
the agency explains that complainants received good evaluations for the
work they performed in their respective positions at the time. Having
strong interpersonal skills is an attribute that Foremen II should have;
complainants were not evaluated as Foremen II. Moreover, the SO learned
of the poor perception people have of complainants from the references
he contacted. Lastly, the agency denies having given the selectee a copy
of the interview questions. The questions were devised by the SO and
two members of the interview panel. The panelists testified that they
came up with their particular questions on the morning of the interview,
so it was impossible for anyone to have acquired them beforehand. The SO
also testified that he did not disclose his questions to anyone at any
time prior to the interview. It was only then that he distributed his
questions to the interview panel.
Legal Analysis
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.
The AJ determined, the agency does not dispute, and we shall also assume
that a prima facie case was properly established. The AJ then determined
upon review of the evidence that the agency articulated a legitimate,
non-discriminatory reason for not selecting complainants to the position.
The agency provided the testimony of interview panelists who testified
that complainants, although good candidates, simply did not interview as
well as the selectee. See ROI, Ex. E at 117-20, 124-28; Ex. H at 169-70;
Ex. I; at 179-80; Ex. J at 188-89. Complainants themselves all concede
that they failed to perform their best during the interview for various
reasons. See ROI, Ex. A at 34-35; Ex. C. at 77-78; Ex. D. at 105-06.
Nevertheless, in a non-selection case, complainants may establish
pretext with a showing that their qualifications were plainly superior
to those of the selectee. See Burchfield v. Dep't of Treasury, EEOC
Appeal Nos. 01970152, 01941579 (Apr. 6, 2000). However, we recognize,
as the federal courts do, that an employer has the discretion to
choose among equally qualified candidates. See Brown v. Dep't of Army,
EEOC Appeal No. 01970189 (Feb. 25, 2000); Canham v. Oberlin College,
666 F.2d 1057, 1061 (6th Cir. 1981), cert. denied, 456 U.S. 977 (1982).
Having more years of experience than the selectee does not necessarily
make an individual more qualified to meet the needs of the organization.
See Collins v. Dep't of Treasury, EEOC Request No. 05A41248 (Oct. 5,
2004).
Complainants' arguments of pretext and superior qualifications have all
be raised before the AJ.<0> It is true that the AJ did not address all
their arguments in the decision, but we find that he evaluated them
in light of the evidence presented, and concluded that complainants
simply did not meet their burden of proof. We agree that the evidence
substantially supports the AJ's finding and we decline to review the
arguments again here. We understand complainants' disappointment in not
being selected. Complainants are highly qualified and have invaluable
years of experience and knowledge, but we do not find evidence of
wrongdoing in the non-selection. Deciding whether or not a candidate has
the requisite work experience for a job is in essence a judgment call and
absent any evidence of bad faith or discriminatory motive we cannot find
that the decision was unlawful. As mentioned above, we have repeatedly
recognized that the agency generally has broad discretion to set policies
and carry out personnel decisions and should not be second-guessed by the
reviewing authority absent evidence of unlawful motivation. See Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). We do
not have the authority nor the capacity to stand as the super-personnel
department for the Department of Energy. Of course, personnel decisions
that are idiosyncratic or suspect are subjected to heightened scrutiny.
See Andre v. Dep't of Defense, EEOC Appeal No. 01994562 (Feb. 22, 2002).
However, we do not find any unjustified or irregular deviations from
standard procedures to support a finding of pretext. See Hovey v. Dep't
of Hous. & Urban Dev., EEOC Appeal No. 01973965, (Aug. 31, 2000).
Therefore, we discern no basis to disturb the AJ's decision. 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:
December 22, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
0 1A fourth complaint was
consolidated with the three present ones; however, the fourth complainant
withdrew his appeal to the Commission.
0 2We note that on appeal, complainants submit a statement by a co-worker
as corroborating evidence that had not been introduced previously.
We decline to consider it. As a general rule, the Commission will not
consider new evidence on appeal unless there is an affirmative showing
that the evidence was not reasonably available prior to the investigation
or during the hearing process. See EEO Management Directive 110, Ch. 9
� VI.A.3 (1999); see also Federal Sector Equal Employment Opportunity, 64
Fed. Reg. 37,654 (July 12, 1999) (�[N]o new evidence will be considered on
appeal unless the evidence was not reasonably available during the hearing
process�). Complainants could have obtained this statement earlier, but
for unexplained reasons they decided not to. Although we may supplement
the record pursuant to 29 C.F.R. � 1614.405(b), we exercise this right
�only in rare instances to avoid a miscarriage of justice,� such as when
the record is so incomplete as to require remand to the agency in order
to complete the investigation. EEO Management Directive 110, Ch. 9 � V.C
(1999). We do not find that the omission of this statement would cause
a miscarriage of justice.