01994832
04-30-2001
Raymond L. Caudillo, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Raymond L. Caudillo v. Department of the Navy
01994832
04-30-01
.
Raymond L. Caudillo,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01994832
Agency No. DON 98-630-42-001
DECISION
INTRODUCTION
On May 27, 1999, Raymond L. Caudillo (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated April 19, 1999, concerning his
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The Commission hereby accepts the appeal in accordance with 29 C.F.R. �
1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
him based on race when he was not selected for a position to which he
had applied.
BACKGROUND
Complainant was employed by the agency as a Lead Firefighter, GS-7, in
the Fire Division of the Air Operations Department, Naval Air Station,
Lemoore, California. In January 1998, he submitted an application for a
Vacancy Announcement for the position of Supervisory Firefighter, GS-8
(the Position). He was notified, by letter dated February 9, 1998,
that he had not been selected for the Position.
Complainant initiated EEO Counseling on February 9, 1998. He filed a
formal complaint on March 18, 1998, alleging discrimination on the basis
of race (Hispanic)<1> when:
1) proper procedures were not followed by Human Resources Office
(HRO) personnel in January 1998, when rating/ranking applicants for
the Position, resulting in the selection of a person not qualified for
the Position;
2) on February 6, 1998, he was not selected for the Position, even though
he was rated �Best Qualified� by the rating/ranking process; and
3) the Oral Review Board failed to fully recognize his education,
training, and experience in position when interviewing applicants for
the Position, resulting in the selection of a person not qualified for
the Position.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy
of its investigative report and notified complainant of his right
to request an administrative hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
Complainant requested that the agency issue its final decision on
the record. The agency issued its FAD on April 19, 1999.
In its FAD, the agency found that the complainant had established a prima
facie case of race discrimination in that he was a member of a protected
class, applied and was qualified for the Position, but was not selected,
and an individual not of his protected class (the Selectee) was selected.
The FAD articulated the legitimate, non-discriminatory reasons given by
the selecting officials for their choice of the Selectee. The FAD further
stated that complainant had failed to establish that the legitimate,
nondiscriminatory reasons articulated by the agency for its decision
were a pretext for discrimination.
Complainant timely appeals, without comment. The agency requests that
we affirm its FAD.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part 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 case 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.
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. 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. 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. 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).
In response to complainant's claims of discrimination, the agency
presented testimony from the selecting officials that complainant
was not the best candidate for the Position. Both complainant and
the Selectee were rated as �Best Qualified� on the Merit Promotion
Certificate of Eligibles. All the candidates (of which there were six)
were then interviewed by the Oral Review Board, which consisted of
the Fire Chief and two Assistant Fire Chiefs. The Fire Chief (SO-1)
testified that he was looking for someone who was respected by other
department personnel and who demonstrated leadership capabilities. It was
the opinion of SO-1 that the Selectee had superior leadership abilities.
He also testified that complainant had difficulty in following orders and
standard procedures, citing specific examples of instances in which the
complainant had not done so. Both of the Assistant Fire Chiefs (SO-2 and
SO-3) also articulated concerns with complainant's ability to lead and
his ability to follow orders. SO-2 stated that other Firefighters had
requested to be transferred from complainant's crew. All three Selecting
Officials rated Selectee as their top choice for the Position after
the interview process had concluded. There was supporting testimony
in the record from other Firefighters that there were concerns about
complainant's lack of judgment, his ability to give understandable orders,
and his leadership ability. They confirmed that personnel had requested
to be transferred from complainant's crew. We find that the agency has
articulated legitimate, nondiscriminatory reasons for its action.
Since the agency articulated legitimate, nondiscriminatory reasons for
its action, the burden returns to the complainant to demonstrate that
the agency's articulated reasons were a pretext for discrimination.
We find that complainant has failed to do so. Regarding Issue 1,
complainant testified that when he pointed out the error made when his
rating was calculated, the HRO corrected the score. He also testified
that he felt the mistake had been made due to a misinterpretation of the
qualification standards, and that his race was not a factor. Regarding
Issues 2 and 3, complainant attempted to rebut the examples cited by SO-1,
and presented the testimony of one Firefighter on his crew that he had
no trouble understanding the orders given by complainant. He noted
that he had more years of experience with the agency as a Firefighter
than the Selectee did, and that he had more job-related education than
the Selectee. Complainant argued that the Selectee was not qualified
for the Position. We find, however, that the Selectee was rated by the
HRO as among the Best Qualified for the Position, as was the complainant.
The Commission has noted that the agency has the discretion to choose
among equally qualified candidates so long as the decision is not
based on unlawful factors such as race or sex or national origin.
Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987); Abood v. Agency for
International Development, EEOC Appeal No. 01943526 (August 31, 1995).
Court and Commission precedent have consistently held that when there
are equally desirable candidates competing for the same position,
the selecting official may exercise his/her prerogative in choosing
between the candidates and, absent discrimination, a trier of fact should
not substitute his judgment for the legitimate exercise of managerial
discretion. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981);
Jenkins v. Department of Interior, EEOC Request No. 05940284 (March
3, 1995); Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Although complainant may have had
more years of experience at the agency, both he and the Selectee
were qualified for the Position according to the ratings of the HRO.
The Selecting Officials had the discretion to choose the candidate they
judged to be the better person for the Position, and they determined
that the Selectee had the superior leadership skills. Complainant has
not shown how this was discriminatory based on his Hispanic national
origin, and has not shown their reasons to be pretextual. Therefore,
we find that the agency's determination that complainant failed to
establish that he was discriminated against was correct.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
_____04-30-01_____________
Date
1 The Commission considers the classification "Hispanic" to be a national
origin.