0120071490
07-26-2007
Kenneth L. Dugger, Complainant, v. Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.
Kenneth L. Dugger,
Complainant,
v.
Stephen L. Johnson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120071490
Agency No. 20050073R9
DECISION
On January 29, 2007, complainant filed an appeal from the agency's
December 22, 2006, final decision 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as a Special Agent, GS-1811-13, at the agency's Criminal Investigations
Division (CID) facility in Pasadena, California. On August 2, 2005,
complainant filed an EEO complaint alleging discrimination on the bases
of his sex and age (D.O.B. 10/14/61) when he was not selected on May 13,
2005 for the Lead Criminal Investigator, GS-1811-14, position advertised
under Vacancy Announcement HQ-OECA-MP-2005-0042.
By letter, the agency accepted the claim on August 15, 2005, and referred
the case for investigation. At the conclusion of investigation,
complainant was provided with a copy of the Report of Investigation
(ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant received the ROI on February
13, 2006. He submitted additional evidence to the agency on April 19,
2006 because he felt that the ROI was deficient. The agency, in a letter
dated May 2, 2006, returned complainant's additional evidence to him
"without action," because complainant had not submitted the evidence
within the allotted 30 day time period. Subsequently, when complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency, on December 22, 2006, issued a final decision
(FAD) pursuant to 29 C.F.R. � 1614.110(b).
In its FAD, the agency first found that complainant established a
prima facie case of sex and age discrimination because the selectee
was female and outside of the protected age class. However, the agency
found that it articulated a legitimate, nondiscriminatory reason for not
selecting complainant. The agency noted that the selecting official (SO1)
stated that the selectee had the "most specialized experience," while
"[c]omplainant did not have the same level of experience." Finally,
the agency found, given the evidence in the record, complainant failed
to establish that the agency's legitimate, nondiscriminatory reason was
a pretext for discrimination, and concluded that he was not subjected
to discrimination as alleged.
Among other things, complainant alleges on appeal that the interviewing
panel asked the selectee two additional questions during her interview
which resulted in her selection for the position. Complainant argues
that these two questions disadvantaged him and are evidence of pretext.
Further, complainant argues that he is plainly superior to selectee
because he has more investigative experience. He alleges that SO1 ignored
his "specialized experience" when making her selection. In addition,
complainant submits on appeal the evidence he requested be added to
the ROI and that was returned to him by the agency. He alleges that
the evidence shows an affirmative action policy which gives bonuses
to executives based on workforce diversity. Complainant argues that
this policy shows a pretext of discrimination in his nonselection.
Finally, complainant requests that we remand the case to the agency
for a supplemental investigation. Complainant contends that the ROI
is deficient without the submitted evidence and therefore, the agency's
FAD is invalid because it was based on an incomplete and biased record.
Preliminarily, complainant requests that we remand this matter to the
agency for supplemental investigation. 29 C.F.R. � 1614.108(b) states
in pertinent part, "the agency shall develop an impartial and appropriate
factual record upon which to make findings . . . . An appropriate factual
record is one that allows a reasonable fact finder to draw conclusions
as to whether discrimination occurred." After review of the evidence
complainant submitted, we find that the ROI is sufficiently complete to
make a ruling on complainant's nonselection complaint. Accordingly, we
deny complainant's request. Nevertheless, we will consider complainant's
evidence and contentions he raises on appeal.
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); EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999).
The record reveals the following facts: The agency announced two position
vacancies, but complainant only applied for the position at issue.
ROI Complainant's Aff. at 68. During the interviewing stage, the panel
consolidated the interviews for both vacancies into a single interview
process. ROI Ex. F8 at 110. The agency used a three-stage selection
process for its selection: (1) the panel interviewed and referred the
most qualified candidates to SO1; (2) SO1 and the acting deputy director
(SO2) discussed the referred applicants' applications and, according
to them, selected the most qualified candidate; and (3) SO1 submitted
the selectee's name to the concurring official (CO) for final approval.
ROI SO1 Aff. at 79. The interviewing panel consisted of five members:
the Special Agent in Charge (SAC), GS-15 of the New York CID (SAC1); the
SAC of the Philadelphia CID (SAC2); the SAC of the Atlanta CID (SAC3);
and two members who did not submit affidavits. ROI SAC1 Aff. at 100.
All interviews were conducted via telephone, and since the panelists
knew all the applicants, the panelist who knew the applicant least asked
the interview questions. ROI SAC2 Aff. at 105. Each position had its
own distinct set of interview questions that were pre-approved by the
panelists, and some of the questions for each position were identical.
ROI SAC3 at 110. However, some candidates who applied for both positions
were asked the questions for both positions. ROI SAC1 Aff. at 100.
Additionally, some candidates were asked follow-up questions that
were not on the pre-approved list. Id. According to the agency, the
interview questions were designed to "determine how logical, complete
and professional the answers were." ROI SAC3 Aff. at 110. In making
their recommendations, the panel "only considered the interview process.
The panel conducted interviews of fourteen applicants and referred four
applicants to SO1, in ranked order. ROI Ex. F10e at 140. The panel
ranked the selectee first overall, and complainant third. Id. However,
the panel "understood that [SO1 and SO2] would consider those four
candidates, but would not be bound to select the top ranked candidate."
ROI SAC3 Aff. at 110.
At stage (2), SO1 and SO2 used a ranking system where they allotted points
based on four criterion. ROI Ex. F12b at 160. All four candidates,
who were referred by the panel, received the full amount of points in
the interview and communication categories. Id. According to SO2 in
his affidavit, SO1 and SO2 only focused on two factors: investigative
experience and "specialized experience." ROI at 85. Subsequently,
complainant received more points than the selectee in the investigative
experience category because he had 12 years experience to the selectee's
8 years. ROI Ex. F12b at 160. However, the selectee had 20 months of
"specialized experience" compared to complainant's 4 months. ROI SO1
Aff. at 79. SO1 defined "specialized experience" as "experience as a
desk officer and detail[s] to other law enforcement agenc[ies]." ROI SO1
Aff. at 79. Based on this "specialized experience," SO1 and SO2 chose
the selectee for the position. ROI SO1 Aff. at 80, SO2 Aff. at 86.
SO1 submitted the selectee's name to CO, who concurred with SO1's
selection. ROI CO Aff. at 90.
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).
Assuming arguendo that complainant established a prima facie case
of age or sex discrimination, we find that the agency articulated a
legitimate, nondiscriminatory reason for its action. SO1 stated that
while investigative experience was important for the position at issue,
experience "working in a Headquarters environment" was more important.
ROI SO1 Aff. at 81. Further, SO1 stated she chose the selectee "based
on her experience." Id. at 80. Specifically, selectee had 20 months
of relevant job experience, where complainant only had 4 months.
Id. at 79.
In order to establish a pretext for age or sex discrimination, complainant
argues that the interviewing panel asked the selectee two more questions
than it asked him. Complainant alleges the selectee answered these
two additional questions because she applied for both positions, where
he had only applied for the position at issue. Complainant contends
that these two questions from the other position's interview question
set influenced the panel's decision in how it ranked the applicants.
Although the record indicates that the interview panel interviewed for
both positions in a single interview, the record is void of any evidence
showing that the selectee applied for the other position, or was asked
questions pertaining to the other position. Therefore, complainant
fails to proffer any evidence to corroborate his assertions. We also
find that complainant failed to establish that he was disadvantaged by
the interview process as he alleges.
Complainant further argues that he is plainly superior to the selectee.
Complainant may be able to establish pretext with a showing that his
qualifications were plainly superior to those of the selectee. Wasser
v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995);
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant
specifically alleges that he has more investigative experience than
selectee, and that SO1 ignored his "specialized experience" when making
her decision. We note that an agency is free to choose from equally
qualified candidates, provided that the choice is not based on unlawful
criteria, and the agency need not prove objectively that it chose the
best candidate. See Seidel v. Department of Agriculture, EEOC Request
No. 05880287 (April 28, 1988). The focus should be on the selecting
official's intent and not on the adequacy of his or her business judgment.
Id. Complainant, the selectee and two other candidates were referred to
SO1 in the panel's recommendation letter from the pool of 14 applicants.
ROI Exs. F10c at 134, F10e at 140. Therefore, we find that complainant
failed to establish that he was plainly superior to the selectee.1
Complainant also alleges that SO1 ignored his experience when she made
her selection. Complainant alleges that SO1 ignored his detail to the
FBI Joint Terrorism Task Force (JTTF) located in Los Angeles, California.
He maintained that the JTTF detail gave him 24 months of additional
relevant job experience. ROI Ex. F11a at 143. SO1's rating table shows
that complainant scored highest in the investigative experience category.
ROI Ex. F12b at 160. However, the table shows that complainant scored
lower than selectee in only one category: "specialized experience." Id.
SO1 stated that the selectee had 20 months of relevant job experience,
where complainant had only 4. ROI at 79. The selectee's 20 months of
relevant job experience was as a Desk Officer in CID Headquarters located
in Washington, D.C. ROI Ex. F11b at 151. Complainant's 4 months of
relevant job experience was a detail for the Department of Justice
INTERPOL located in Washington, D.C. ROI Ex. F11a at 145. The CO
stated that the JTTF detail was not relevant because it was a homeland
security detail rather than an environmental crimes investigation detail.
ROI CO Aff. at 91. Complainant failed to proffer any evidence to rebut
CO's statements. The agency 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. Burdine,
450 U.S. at 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997).
Finally, complainant contends that his nonselection for the position was
based on the agency's affirmative action policy. Complainant submits a
memorandum dated January 18, 2000, which states that all Senior Executive
Supervisors (SES) should comply with the framework the agency created to
foster a fair EEO environment for hirings and promotions. SES's could
receive promotional bonuses for their compliance with this framework.
Also, complainant submitted evidence to show that the agency knew it
lacked diversity, and argues that this policy is discriminatory because
it gives bonuses to managers for selecting women and minorities. However,
we find no persuasive evidence that establishes a nexus between the policy
and complainant's nonselection. We note in this regard that complainant
failed to submit any evidence that this policy influenced the selection
process, or that any SES's involved in the selection process knew of,
or at any time received a bonus based on this policy.
Accordingly, based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, we
AFFIRM the agency's finding of no discrimination. Complainant failed
to establish by the preponderance of evidence that he was discriminated
against based on his age or sex.
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
_____7-26-07_____________
Date
1 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).
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0120071490
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120071490