0120054737
11-26-2007
Lester L. Walker, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Lester L. Walker,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01200547371
Agency No. 04-2053
Hearing No. 310-2004-00460X
DECISION
Complainant timely initiated 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 accepted pursuant to 29 C.F.R. � 1614.405(a).
The record indicates that, during the period at issue, complainant was
employed as a Final Verifier, KG-694-06, Step 3, at the agency's Bureau
of Engraving and Printing (BEP), Western Currency Facility, Security
Verification Section in Fort Worth, Texas. Complainant also served as an
Acting Supervisor, on an as needed basis. The record reflects that prior
to his Final Verifier, KG-9694-06, Step 3 position, complainant had been
employed as a Police Officer for the BEP from January 1994 to June 1995.
On November 12, 2003, complainant filed a formal EEO complaint.
Therein, complainant claimed that he was a victim of unlawful employment
discrimination on the bases of race (African-American), color (black),
and in reprisal for prior EEO activity when:
(1) on January 18, 2003, he learned that he was not selected for the
position of Police Officer, TR-0083-07, under Vacancy Announcement Number
(VA No.) DEU-2002-02-SRP, through a non-competitive referral process; and
(2) on September 12, 2003, he learned that he was rated as "not qualified"
for the position of Supervisory Police Officer, TR-083-09, under VA
No. DEU-2003-18-KDR. Complainant was later deemed qualified for the
position on October 23, 2003, and he was subsequently non-selected for
the position on November 7, 2003.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing on December 15, 2004 and March 4, 2006,
the AJ issued a decision finding no discrimination. In her decision,
the AJ found that in regard to claim (1), complainant did not establish
a prima facie case of race and color discrimination. Specifically, the
AJ found that complainant did not demonstrate that similarly situated
employees not in complainant's protected class were treated differently
under similar circumstances. The AJ further found that complainant failed
to establish a prima facie case of reprisal discrimination, because the
selecting officials were not aware of his prior protected activity.
Regarding claim (2), the AJ found complainant did not establish a
prima facie case of race and color discrimination. The AJ found,
however, that complainant established a prima facie case of reprisal
discrimination because the selecting official was aware of his prior
protected activity. The AJ further found that the agency articulated
legitimate, nondiscriminatory reasons for complainant's non-selection
which complainant failed to show were a pretext for discrimination.
Finally, the AJ found that complainant failed to show that his
qualifications were observably superior to the selectees that his
non-selection could only have occurred due to discrimination.
The record contains the following pertinent testimony and documentation.
Regarding claim (1), the record reflects that the Selecting Official (SO)
stated that he received a Non-Competitive Referral for the position of
Police Officer, TR-0083-07, from Human Resources containing the names
of two candidates, including complainant. The SO further stated that
he and a named Captain interviewed complainant and the second candidate
(C1). The SO stated that because both candidates did well during the
interview, he selected them for the subject positions on October 10,
2002; and forwarded his determination to his supervisor, the Manager
of the Security Division (MSD) for approval. The SO stated that MSD
concurred with his decision to select both complainant and C1 for the
subject positions. The SO stated that in late October 2002, before
complainant was actually offered the position, he was instructed by MSD
to contact Human Resources and withdraw complainant's appointment to
the subject position. Specifically, the SO stated that MSD informed him
that she had received negative comments from complainant's second-level
supervisor (S2) concerning complainant's conduct. Furthermore, the SO
stated that during the relevant time, he was not aware of complainant's
prior protected activity.
The record further reflects that the MSD stated that she initially
approved SO's determination to select complainant for the subject
position. The record indicates the MSD further stated that, in the summer
of 2002, she learned of the Federal Law Enforcement Training Center
(FLETC) retraining policy while attending a meeting in Washington D.C.
Specifically, the MSD stated that if an officer had been out of the police
force for five years, the officer would have to repeat FLETC training.
The MSD stated that although she did not believe the retraining policy
was in writing, it nonetheless was not required to be in writing in
order to be valid. The MSD stated that she implemented the policy after
she returned from Washington D.C. The MSD stated that the agency was
originally authorized 12 slots for the Mixed Police Basic Course at FLETC
"but we didn't have enough people out selected, and so we gave back four
of them, and we kept 8 remaining slots, and so we were pushing really
hard to get those 8 slots filled." The MSD stated that it was important
to her to fill the remaining 8 slots because "our police officers were
working 12-hour shifts and they were tired, and they were not getting
to be with their families, and I . . . was beginning to have issues
with that." The MSD stated that she had to fill the remaining eight (8)
slots by October 18, 2005 in time for the November 5, 2005 FLETC class.
The record further indicates that the MSD stated after the eight (8)
FLETC slots were filled, she received negative information concerning
complainant. Specifically, the MSD stated that she met with complainant's
second-level supervisor (S2) on an unrelated matter, and that S2 mentioned
to her that he heard that she was hiring complainant. The MSD stated that
she told S2 that she had considered selecting complainant but at that time
she did not have available FLETC training slots "but he could be picked
up later." The MSD stated that S2 shared his concerns about complainant.
The MSD stated that according to S2, complainant was a good worker "but
any time we have issues or problems, it seems like [complainant] is a
part of those problems." The MSD stated that she gave "a lot of weight"
to S2's comments about complainant because she had a lot of respect for
S2; and that he used to be her supervisor. The MSD stated that she also
received a telephone call from a named police officer (PO) who expressed
his concerns over complainant returning to the police force. The MSD
stated that PO indicated that complainant "had caused problems when
he was on the police force and that [complainant] had even threatened
his life." The MSD stated that she then asked SO if he was aware of
the situation between complainant and PO but he indicated he was not.
The MSD stated that the SO "looked through his files and he provided me
a statement by the [PO]."
The MSD stated that she then went to personnel office and "I asked
them if I had made a selection, did I have to go through and put the
person on the police force." The record indicates the MSD stated that
personnel informed her that if a tentative offer "had not been made,
then I was . . . not obligated to take that person." The MSD stated
that following her conversation with personnel, she instructed SO not
to select complainant for the subject position. The MSD further stated
that because "I could not prove or disprove the allegations against
[complainant], and his current manager (who had previously been the
manager over the Security Division) did not recommend [complainant] for
the position, I made the decision that I believed promoted efficiency of
the service within the Security Division." Furthermore, the MSD stated
that complainant's race and color had nothing to do with her decision
not to offer him the position.
S2 acknowledged that the MSD stopped by his office on one occasion
concerning an unrelated matter. S2 stated that he told the MSD that he
had heard a rumor that she was going to possibly hire complainant "back
on the police force." S2 stated that the MSD responded that she was
unsure if complainant would be hired because she did not have any more
FLETC slots. S2 stated that he then told the MSD that complainant is
"a pretty good guy, but, you know [complainant], he'll test the limits
. . . on anything. And I said, you know, you have the one other issue
which we had a problem with another police officer, and I don't recall
whether I said something to the extent that I don't know if it's a good
chemistry to mix those guys again or what." S2 further stated that he
told the MSD that there was a "very nasty" situation between complainant
and another police officer. S2 further stated that given the severity of
the situation, the Chief of Security directed the other police officer
for a fitness for duty on psychological grounds "so it was a pretty
heavy situation."
The record reflects that the Specialist stated that she submitted
the Non-Competitive Referral to the SO. The Specialist stated that
following the interviews, the SO selected both complainant and C1.
The Specialist stated that after she received the approved certificate
from headquarters, she "attempted to make offers for the subject positions
for both candidates on [October 18, 2003]." Specifically, the Specialist
stated that on October 18, 2003, she was able to contact the candidate,
but was unable to contact complainant. The Specialist stated that she
attempted to contact complainant but learned that he was out of town
attending his brother's funeral "and then the next week I tried to
contact him on [October 23, 2003] to make a second attempt, and found
out that he was not in." The Specialist stated that on the same day,
the SO instructed her not to make the job offer to complainant due to
the lack of FLETC slots. The Specialist stated that complainant called
"inquiring as to why I had called him. And I told him I was calling to
make him a job offer. And I went on to tell him that I was not able to
do that now because there were no more slots available." Furthermore,
the Specialist denied discriminating against complainant based on his
race, color or prior protected activity.
Regarding claim (2), the record reflects that initially there were two
vacancies for the position of Supervisory Police Officer, TR-083-09;
and that eight candidates applied and were considered qualified for the
subject position. The record further reflects that the first Certificate
of Eligibles of 8 candidates was referred to the SO for consideration.
One candidate declined to be considered for the subject position.
The record reflects that the SO established a panel of three members
including himself; and the panel interviewed and rated the candidates. The
record reflects that after the Specialist realized that complainant
was deemed qualified for the subject position, she rescinded the first
selection certificate and replaced it with a second certificate, with
complainant's name on it. The record reflects that there were eight (8)
candidates, including complainant, for three vacancies for the position
of Supervisor Police Officer.
The SO stated that he developed the questions for the interview.
The SO stated that he and the panel reviewed the candidates' application
packages and interviewed them using a ranking system. The SO stated
"after we completed the interview process, I asked each panel member to -
- in his opinion to rank the candidates from 1 through, I think 7; 1 being
the highest that - - gave the best interview." The SO stated that it was
one (1) month later when he received a second selection certificate list
from the Specialist; and the panel interviewed and rated complainant.
The SO stated that he then chose three selectees for the subject
positions based on their extensive work experience and their "unremitting
dedication to law enforcement." The SO stated that the first selectee
(S1) had approximately six years of BEP police experience; and that he
worked as a "police officer and "a supervisory sergeant in the BEP and
his long-time career in the BEP police." The SO stated that the second
selectee (S2) had approximately 8 to 9 years of BEP police experience;
and that he worked as "a corporal for many years and as a union leader
as vice president." The SO stated that the third selectee (S3) was
"a police sergeant with the BEP, and he has been with the BEP for about
14 years and he was a sergeant for about 7 years." The SO also stated
that during the relevant time, complainant had fewer than 2 years of
BEP police experience. The SO further stated that the MSD did not in
any way attempt to influence him with regard to his selection for the
subject positions.
The record further reflects that one of the other two panelists (P1)
stated that the panel reviewed the candidates' application packages and
interviewed them. Specifically, P1 stated that the SO gave him and the
other panelist (P2) a list of prepared questions to ask the candidates,
and "we decided who was going to ask which questions." P1 stated that
the panel asked all of the candidates the same questions. P1 stated that
the panel independently rated all of the candidates with "1" being the
highest and "7" being the lowest. P1 stated that complainant was not
in the first interview group. P1 stated that approximately one month
after the first interviews were completed, the panel was informed that
complainant was to be interviewed. P1 stated that he was never given
an explanation why complainant was not on the first certificate; and
did not mark down complainant's rating just because he was not on the
first certificate. P1 stated that the SO and the MSD did not attempt to
influence his rating of the candidates. P1 stated that he ranked S1,
S2 and S3 as the top three "based on their background here at the BEP
and their previous experience as a supervisor." P1 stated that he felt
that S1 was the best qualified candidate for the subject position based
on his supervisory experience. Specifically, P1 stated that S1 had 18
years experience as a supervisor in the Air Force, a supervisor at the
Veterans Affairs and a temporary supervisor at the BEP. P1 stated that
S2 had 9 years of supervisory experience in the Air Force, 11 years
as a BEP police officer and was a temporary supervisor at the BEP.
P1 stated that S3 was ranked third because "he had been a supervisor
here at the BEP for seven years, a sergeant. He was a lead supervisor
with the Bureau of Prisons. And he was an Assistant Team Leader with
the Department of - - at Security Administration."
P1 stated that complainant "was my fourth choice, my fourth
recommendation." P1 stated that complainant had between a year and a half
and two years of experience as a BEP police officer but did not have any
supervisor experience as a BEP police officer. P1 stated that during the
relevant time, he was unaware of complainant's prior protected activity.
Furthermore, P1 stated that his rating of complainant did not have
anything to do with his race or color.
The record reflects that the other panelist (P2) stated that he was on
the panel for the subject position along with the SO and P1. P2 further
stated that the panel asked all of the candidates, including complainant,
the same questions. P2 stated that the panel independently ranked the
candidates, and "and all I did was to just rank them according to the
oral interview, and that was it." P2 stated that he recommended that
complainant be one of the three selectees for the subject positions based
on his interview. P2 stated that he ranked complainant second because
he "was very assertive, very positive, very in control of himself.
He presented himself well." P2 stated that he and the other panelist
handed over their ranking scores to the SO; and that he had no involvement
with the actual selection of who the top three candidates should be.
Specifically, P2 stated "I just turned it over to him and that was the
end of my responsibility." P2 stated that MSD did not try to influence
him in any way with respect to how he ranked the candidates.
The record further reflects that the Specialist stated that a competitive
certificate was used for the subject position. The Specialist stated
that she initially determined that complainant was unqualified for the
subject position because "he didn't meet the time in grade requirements
for the position and that he didn't have the current FLETC requirements
because he had been off the force for 7 years, I believe back then."
The Specialist stated that she discussed her determination with a
senior specialist and "she concurred with me that time in grade was
still a requirement for someone to meet for promotional opportunities."
The Specialist stated, however, she discussed the requirements for the
subject position with another senior specialist "here who has worked
with the police officer unit before I took over the police officer area,
she told me that there was an exclusion to that time in grade requirement
and that [complainant] did not have to meet the grade in time and that
it was based on his extensive military background experience that we
could qualify him for the position." The Specialist stated that she then
issued a new selection certificate with his name on it. The Specialist
stated that after she issued the second certificate, she discarded
the first certificate because complainant's name was not on the list.
The Specialist stated that she informed complainant "citing the CFR as
to the exclusion why he was not included in the process."
On May 17, 2005, the agency issued a final order implementing the AJ's
finding of no discrimination. As an initial matter, the Commission notes
that one witness testified by telephone at the hearing held by the AJ.
The Commission has held that testimony may not be taken by telephone
in the absence of exigent circumstances, unless at the joint request
of the parties and provided that specified conditions have been met.
See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May
17, 2006).2 However, because the facts of this case pre-date Louthen,
the Commission will assess the propriety of taking the testimony of
some witnesses by telephone, considering the totality of circumstances.
Here, it is unclear whether exigent circumstances existed. However,
it is clear that there were no issues of witness credibility that might
have been impacted by the taking of this testimony by telephone, and
neither party objected to the manner in which those witnesses testified.
Under these circumstances, even if it is assumed that the AJ abused her
discretion by taking testimony by telephone, the Commission finds that
her action would have constituted harmless error.
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.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission notes that on appeal, complainant, through his attorney,
contends that the AJ incorrectly applied the law in finding that
complainant "failed to establish a prima facie case of discrimination
based on his race, color or reprisal with regard to the TR-7 selection."
The Commission finds, however, that after a careful review of the record
as discussed above, the agency nevertheless articulated legitimate,
nondiscriminatory reasons for its actions as described above. As such,
we concur with the AJ's finding that complainant failed to establish he
was discriminated against when he was not offered the TR-7 Police Officer
position. Despite complainant's allegation that the AJ unreasonably
discredited the testimony of all his witnesses, the record indicates
that complainant was not offered the TR-7 Police Officer position as:
(1) when he returned from his brother's funeral, there were no more FLETC
slots; and (2) due to the information the MDO received about complainant's
prior conduct. The record further indicates that the evidence of record
establishes complainant was not selected for the TR-9 Supervisory Police
Officer position as there were three (3) applicants who were found to
be more qualified than complainant. Further, we concur with the AJ's
finding that complainant failed to proffer evidence which demonstrates
that the agency's articulated reasons for its actions were more likely
than not pretextual in nature.
The Commission also notes that on appeal, complainant argues that he
discovered that the EEO office maintained two sets of complaint files.
Complainant further contends that only one set of those files was included
in the Report of Investigation in the instant case; and that the second
set of files "contained information that, as explained in more detail in
the body of this appeal, would have been helpful to the Complainant in
pursuing his case." Complainant makes specific reference to a second
set of EEO files containing an email prepared by an EEO Counselor
on October 8, 2003. Complainant argues that the version of events
presented in this email differs from the version of events that she
gave in the Report of Investigation. In conjunction with the instant
appeal, complainant files a motion for sanctions, and as a sanction,
moves for default judgment against the agency. The agency responded
to complainant's appeal, requesting that the Commission affirm the AJ's
decision finding no discrimination.
In response, the agency argues that the purported new evidence should
not be considered. The agency further argues that assuming, arguendo,
the alleged e-mail is legitimate, it constitutes new evidence that could
have easily been discovered prior to the hearing.
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. 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"). Although the
Commission may supplement the record pursuant to 29 C.F.R. � 1614.405(b),
we have chosen to 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). After consideration
of complainant's allegations on appeal and the evidence of record, the
Commission determines there is no indication that the matters raised by
complainant on appeal were not reasonably available before or during
the hearing. We therefore reject complainant's argument on appeal on
this matter, as well as the motion for sanctions.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by substantial evidence in the record.
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
___11/26/07_______________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 In Louthen, the Commission promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent.
When assessing prior instances of telephonic testimony, the Commission
will determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further,
where telephonic testimony is improperly taken, the Commission will
scrutinize the evidence of record to determine whether the error was
harmless, as is found in this case.
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0120054737
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120054737