0120120797
05-30-2012
Marvin F. Macicek, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Marvin F. Macicek,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120120797
Hearing No. 450-2011-00204X
Agency No. ED-2011-OCR-0013
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 16, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as an Equal Opportunity Specialist, GS-12, at the Agency's Office of Civil Rights (OCR) in Dallas, Texas.
On December 10, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of race (Caucasian), sex (male), age (over 40), and in reprisal for prior EEO activity when:
on September 29, 2010, he was not selected for the position of Senior Equal Opportunity Specialist, GS-360-13, advertised under Vacancy Announcement No. DAL-OCR-2010-005.
The record reflects that eight candidates, including Complainant, were certified and referred to the selecting official (SO). The SO implemented a seven-member panel. After a review of the candidates' applications and interviews, the panel submitted its recommendations to SO. The panel recommended three named candidates with the top combined application and interview scores be selected for the subject position. After reviewing the panel's recommendation, SO selected the top three applicants as well as a fourth applicant.
The record further reflects that during the relevant time, the Agency was unaware how many promotional opportunities it would have until the final applicants' names were selected. The record reflects that when the subject vacancy announcement went out, the Agency was unsure exactly how many promotional opportunities would exist. At first, the Agency thought it would have at least five but it turned out it had no authority to promote five applicants to the GS-13 senior level so they made a decision that four applicants would be considered for the subject positions.
Following the investigation into his formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Following a September 15, 2011 hearing, the AJ issued a decision finding no discrimination. Without addressing the prima facie case analysis, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant, which Complainant failed to show were a pretext. The AJ noted that Complainant asserted that he was more qualified based on his tenure with the Agency. However, the AJ found Complainant did not show that his qualifications were superior to those of the selectees. The AJ also noted that while Complainant received satisfactory ratings on his performance evaluations, the selectees received higher ratings.
The AJ noted that the panel sought candidates with extensive work experience, analytical skills, leadership goals, and mentoring skills. The AJ noted that the selecting official (SO) stated that he heavily relied on the panel's recommendations of the top three applicants. Specifically, SO stated that he selected the top three applicants as well as a fourth applicant for the subject positions. SO stated that he did not select Complainant for the subject position because the panel did not recommend him for selection.
The AJ noted that one of the panelists was Complainant's supervisor (S1). S1 stated that the panel was "looking for someone who could be a mentor, someone who could train people, either new investigators or maybe not - - other investigators, even the attorneys in the office on certain things. I knew we were looking for someone who had a lot of leadership skills and had demonstrated leadership ability. Someone who could represent the department." S1 stated that the panel recommended the top three applicants to SO because of their leadership skills.
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S1 stated that he did not recommend Complainant to the panel because Complainant was "an average investigator. I would say a good investigator. I don't think [Complainant] has the abilities we were looking for, for a senior investigator in the office." S1 stated that the top applicants had highly successful ratings compared to Complainant's successful rating. Furthermore, S1 stated that he received complaints from several attorneys concerning Complainant's performance.
With respect to Complainant's assertion that he was qualified for the subject position because his case numbers were better than the selectees' case numbers, S1 stated "you can't base that on just the numbers or the amount of work someone did. I mean, the numbers don't tell you what kind of cases those were, because there are some cases that are fairly simple and . . . are dismissed right away, something that we don't have jurisdiction over for instance or something. Some cases, however, take years and years to do a proper investigation and get a commitment if there's a violation and so forth and so on. So the numbers . . . I'm not going to say they're not important, because again everyone should be carrying their fair share of the load. And again, looking for someone as a senior should be something [who is] doing even more than that. But the numbers, by themselves, don't tell you very much."
The AJ noted that the Supervisory Equal Opportunity Specialist Team Leader stated that she was one of the panelists (P1). P1 stated that the panel was "looking for, in a nutshell, someone who could promote the mission of the office and who had capability of helping to move the work, someone with real leadership, to make sure that things were being done in a timely and quality manner."
P1 testified that the panel "decided on that, each of the panel members were to rate the applicants individually. This was done, and I believe it was after we asked for input from anyone at the table who had firsthand experience, meaning that they had supervised those individuals or general observation about their manner, conduct during the normal course of business or while participating on committee - - committees within the office." P1 stated that following the interviews, the panel recommended the top three applicants to SO for consideration. P1 stated that the top three candidates had strong leadership and analytical skills. P1 stated that Complainant was not one of the top recommended applicants because he ranked "second from the bottom."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred finding no discrimination. For instance, Complainant argues that the AJ "did not comprehend the management culture that has existed and currently exists in the OCR Dallas Office with regard to authoritarian management practices that subject employees to discrimination." Complainant further argues that the Agency attorney "engaged in unethical conduct by informing Agency witnesses about testimony given by the Complainant prior to these witnesses testifying at the EEOC hearing." Complainant states that the testimony of the Agency witnesses "lacked credibility and is impugned; their stated reasons for not promoting the Complainant have no credence."
Furthermore, Complainant argues that the AJ's finding that he failed to demonstrate he was significantly more qualified than the selectees was not supported by the facts. Specifically, Complainant states that his application and performance charts "clearly demonstrate that the Complainant's performance was superior to some, if not all, of the employees promoted."
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.
Complainant provided no persuasive arguments indicating any improprieties in the Agency's findings. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Moreover, we discern nothing in the conduct of Agency attorneys reflecting a breach of ethics, that would have affected the AJ's disposition of the instant case. Therefore, 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 Agency's final order, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
May 30, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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