012008047
04-15-2010
John H. Roberts, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Centers for Disease Control and Prevention) Agency.
John H. Roberts,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Centers for Disease Control and Prevention)
Agency.
Appeal No. 0120080477
Hearing No. 410-2006-00203X
Agency No. 410-A6-00203X-LL
DECISION
On October 31, 2007, complainant filed an appeal from the agency's final
order 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. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
ISSUE PRESENTED
Whether the record contains substantial evidence to support the EEOC
Administrative Judge's determination that complainant did not establish
that he was discriminated against based on race when he was not selected
for a security position.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Park Ranger, GS-5, at the Department of the Interior's Martin Luther
King historic site in Atlanta, Georgia. In 2005, complainant applied
for a GS-9 Security Specialist position with the Centers for Disease
Control and Prevention (agency) and was deemed qualified by the agency.
Complainant was interviewed for the position by the selecting official,
but the selecting official did not select complainant for the position.
Instead, the agency selected a white applicant who was employed by the
contractor that provided security for the agency.
On September 8, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of race (African-American)
when on May 12, 2005, the agency failed to select him for the position
of Security Specialist.
At the conclusion of the investigation, complainant was provided 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. The agency moved for a decision without a hearing,
but the AJ held a hearing because she determined that the credibility of
complainant and the selecting official were at issue in this case. On May
9, 2007, complainant and the selecting official testified at the hearing.
On September 19, 2007, the AJ issued a decision in which she found that
complainant was not subjected to unlawful discrimination. The agency
subsequently issued a final order fully adopting the AJ's finding.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the selecting official's assertion
that his demeanor was too casual at the interview is discriminatory.
Complainant further contends that the agency was unable to verify that
he was late for the interview with logs and video camera footage.
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.
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
In this case, complainant applied for a Security Specialist position,
the agency deemed him qualified for the position, he was not selected
for the position, and the agency selected a Caucasian applicant for
the position. Thus, we find that complainant established a prima facie
case of race discrimination
Nonetheless, we find that the agency provided legitimate,
non-discriminatory reasons for its actions. Specifically, the selecting
official testified that she chose the selectee for the position because
he already provided security to the agency as a contractor; had performed
the duties of the vacant position for at least nine years while with the
contractor; had over 21 years of experience in the Navy, including as a
manager; and, had seven years of experience using the Pegasus security
system, which is the same system the agency uses. The selecting official
further stated that complainant was not selected for the position because
he had significantly less experience with the Pegasus system; exhibited
an unprofessional casual demeanor when he called her by her first name
during the interview; and, was late for the interview.
Complainant contends that the selecting official's claim that his
interview demeanor was too casual and familiar is discriminatory,
but complainant's assertion is conclusory and does not prove that
the selecting official's assessment was based upon racial animus.
Complainant further contends that the agency was unable to verify that he
was late for the interview with logs and video camera footage. However,
as revealed at the hearing, complainant failed to properly submit his
discovery request for this evidence to the agency. Complainant has
not provided any evidence that proves that the agency's explanations are
pretext for race discrimination. In this regard, 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, 127 S.Ct. 1154 (Jan. 22, 2007). We find that substantial
evidence in the record supports the AJ's determination that complainant
failed to prove that was he was subjected to unlawful discrimination.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions
on appeal, we affirm the agency's final order for the reasons set forth
in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
_____4/15/10_____________
Date
2
0120080477
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080477