0120111694
11-27-2012
Joseph Pickett, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Joseph Pickett,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120111694
Hearing No. 420-2010-00023-X
Agency No. ARCEHUNTV09MAR01351
DECISION
On January 26, 2011, Complainant filed an appeal from the Agency's December 17, 2010 final action 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. For the following reasons, the Commission AFFIRMS the Agency's final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Instructional Systems Specialist, GS-1750-11, at the United States Army Corps of Engineering Learning Center (ULC) in Huntsville, Alabama. On October 14, 2008, the Agency posted Vacancy Announcement No. SCBK08050892 to fill an Instructional Systems Specialist, GS-1750-12, position at the ULC. The position at issue was open from December 3, 2008, through December 31, 2008. Complainant applied for the position and was found qualified. Person A, Complainant's first-level supervisor, was the Selecting Official for the position. Person A also sat on the panel consisting of three supervisors at the ULC which convened to rate and rank the applicants. The panel members were Person A, Complainant's second-level supervisor (Person B), and Person C (Supervisory Instructional Systems Specialist). Four applicants, including Complainant, were interviewed for the vacancy at issue. Subsequently, Person Y was selected to fill GS-12 Instruction Systems Specialist position.
Complainant filed an EEO complaint dated April 23, 2009, alleging that the Agency discriminated against him on the basis of sex (male) when: on February 18, 2009, Complainant was not selected for the position of Instructional Systems Specialist, GS-1750-12 that was advertised under Vacancy Announcement No. SCBK08050892.
At the conclusion of the investigation on the accepted issues, the Agency provided Complainant 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on December 9, 2010.
The AJ noted that four interview questions were asked to each of the interviewees. The AJ recognized that Complainant scored 8.6 points from the interview while the Selectee scored a perfect 12 points on the interview. The AJ noted that the Panel Members believed that Complainant's answers to the interview questions were not as fully developed as the Selectee's answers had been. The AJ noted the Panel members unanimously agreed that the Selectee should be offered the position. The AJ also noted that Complainant scored the lowest of the four persons interviewed. The AJ found Complainant established a prima facie case of sex discrimination in that he applied to fill a position for which the Agency was seeking applicants, and someone outside of his protected status was selected over him. However, the AJ found the Agency articulated legitimate, non-discriminatory reasons for his non-selection, i.e., that the Selectee was ranked the highest by the screening panel. The AJ found Complainant's pre-hearing submissions did not demonstrate pretext, or create a dispute with respect to a material fact, thereby necessitating a hearing on the merits of his complaint.
The Agency subsequently issued a final action dated December 17, 2010. The Agency's final action fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R.� 1614.405(a). See EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
At the outset, we note Complainant originally included race and age as additional bases in his complaint. The Agency dismissed race and age as bases of Complainant's complaint on June 2, 2009. On appeal, Complainant does not challenge the Agency's dismissal; thus, we will not address the propriety of the Agency's dismissal of these bases on appeal.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. We find the Agency articulated legitimate, non-discriminatory reasons for not selecting Complainant: that the Selectee was ranked the highest by the screening panel. Moreover, we find Complainant did not show that his qualifications were plainly superior to those of the Selectee. In the present case, we find that Complainant failed to show by a preponderance of evidence that the Agency's actions were a pretext for discrimination.
CONCLUSION
Accordingly, the Agency's final action finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
November 27, 2012
__________________
Date
2
01-2011-1694
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111694
5
0120111694