01986170
05-05-2000
Roy W. Pruitt, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Roy W. Pruitt v. Department of Veterans Affairs
01986170
May 5, 2000
Roy W. Pruitt, )
Complainant, )
)
v. )
) Appeal No. 01986170
Togo D. West, Jr., ) Agency No. 97-1709
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning his allegation that the agency discriminated against him
in reprisal for having engaged in previous EEO activity in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. The appeal is accepted by the Commission in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).<1> For the reasons set forth below, we AFFIRM the FAD.
ISSUE PRESENTED
The issue presented is whether complainant proved that he was
discriminated against, as referenced above, when he was not selected
for the position of Maintenance and Operations Supervisor, WS-4701-14.
BACKGROUND
Complainant filed his formal complaint in June 1996. Following an
investigation, he was provided a copy of the investigative file and
notified of his right to request a hearing before an EEOC Administrative
Judge (AJ). The complainant initially requested a hearing, but
subsequently withdrew the request. The agency issued a final decision,
on July 22, 1998, finding that complainant had not been subjected to
discrimination. It is from this decision that complainant now appeals.
Complainant, at the time of his complaint, was a Lead Maintenance
Worker at the VA Medical Center in Pittsburgh, Pennsylvania. On May
1, 1996, he was notified by the Human Resources department that he was
qualified for the position of Maintenance and Operations Supervisor and
that he would be referred for an interview. A-1, the Chief, Facilities
Management Service, conducted the interviews on May 4, 1996. On May 16,
1996, he was notified of his nonselection. According to the complainant,
A-1, during the interview, told him that he was aware of complainant's
past disciplinary problems. These disciplinary problems took place in
1990 and 1991. Complainant stated that all records pertaining to the
disciplinary actions should have been destroyed in accordance with the
terms of an EEO settlement agreement.<2> Complainant also maintained
that he was better qualified than the selectee. He maintained that
the selectee, C-1, was preselected in order to prevent him from getting
the position. Finally, complainant indicated that, in July 1993 when
he filed his last complaint, he was told by his immediate supervisor,
A-2, that there would be problems because of his EEO activity.<3>
Complainant's witnesses testified that they believed C-1 was pre-selected
because he had indicated that he had the position before it was announced.
Another witness, testified that he was at a meeting where a management
official stated that it was common knowledge, throughout the medical
center, that the selection of C-1 had already been made. None of
complainant's witnesses testified, however, that they heard management
officials remark that complainant was not selected because of his prior
EEO activity.
A-1 testified that he had only been at the station for six months before
the promotion announcement for the position was posted, and he was unaware
of complainant's prior EEO activity until he filed the present complaint.
Prior to the interview, A-1 stated that he had only brief discussions
with complainant while making the rounds of the facility. With regard
to complainant's contention that records of adverse actions taken against
him were maintained by agency officials, A-2 stated that he was not aware
of the existence of this file at the time he interviewed complainant.
During the pre-complaint process, he stated that, upon being made aware of
the file, he promised to look into the matter. A file was subsequently
discovered and was forwarded to the EEO counselor. A-1 testified that
he did not look at the file and was not aware of its contents.<4>
With respect to his selection decision, A-1 testified that he made an
independent decision regarding the selection. He denied that a management
official directed him to select C-1 or that he was pre-selected during a
supervisory staff meeting. A-1 stated that he was looking for a candidate
with managerial skills, the ability to coordinate and facilitate the
activities of the various trades, and the ability to treat people in
a fair and equitable manner. A-1 testified that he based his decision
on the candidates' response to interview questions and their Official
Personnel Files.<5> Complainant was nonselected because he was unable
to answer 3 out of the 4 questions regarding management principles.
According to A-1, C-1 was able to respond to all 4 questions.<6> A-1 did
indicate, however, that any of the five candidates he interviewed could
have done the job. C-1, he felt, was the better candidate of the five.
ANALYSIS AND FINDINGS
A prima facie case of reprisal is established by showing that: (1) an
employee engaged in protected EEO related activity; (2) the employer
was aware of the protected activity; (3) the employee was subsequently
subjected to adverse treatment; and (4) the adverse action followed
the protected activity within such a period of time that retaliatory
motivation may be inferred. Manoharan v. Columbia University College
of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn
v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); McKenna v. Weinberger,
729 F.2d 783, 790, (D.C. Cir. 1984). For purposes of our analysis,
we are going to assume that complainant was able to establish a prima
facie case of reprisal discrimination.
We find, however, that A-1 articulated a legitimate, nondiscriminatory
reason for why complainant was not selected. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed,
545 F.2d 222 (1st Cir. 1976)(applying the standard to retaliation cases).
We further find that complainant has not established pretext on the
agency's part. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Complainant did not establish that the reason
articulated by A-1 was not true, nor has he established that A-1's
actions were motivated by a desire to retaliate against complainant
because he had engaged in prior EEO activity. According to A-1, he was
not even aware of complainant's prior EEO activity, which last occurred
almost three years before, when he selected C-1. Complainant did not
persuasively rebut this testimony.
We are also not persuaded that complainant established pretext with
respect to his contention that, in 1993, he was told by A-2 that
there would be problems because he had filed an EEO complaint. First,
complainant, who could not remember the exact statement, indicated that
it was made in a joking manner. Next, there is no evidence that A-2's
comment, whatever it was, played any role in A-1's selection decision.
We note in this regard that A-2 was also a candidate for the position;
therefore, he removed himself from any role in providing input to A-1
about the selection process.<7> Finally, although complainant maintained
that C-1 was preselected, we note that, while evidence of preselection
may operate to discredit the employer's explanation for its employment
decision, preselection per se does not violate Title VII when it is
based on the qualifications of the preselected individual and not on a
basis prohibited by Title VII. See McAllister v. United States Postal
Service, EEOC Request No. 05931038 (July 28, 1994); Goostree v. State
of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). Therefore, assuming
that C-1 was preselected, complainant offered no persuasive evidence
that it was based on a prohibited reason.
CONCLUSION
Accordingly, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
__05-05-00_______ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2There is no indication that complaint filed a breach of settlement
allegation with the EEO Director in accordance with 64 Fed. Reg. 37,644,
37,660 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614. 504(a) and (b)).
3The record is not clear regarding the exact nature of complainant's
contention. In his initial August 19, 1996 affidavit, complainant stated:
[I]t was thrown back into my face my face that, I am going from
recollection now, it was thrown back into my face that either they feel
or think the way that I think, or there is going to be problems with
the EEO, and stuff like that. I don't know the exact statement.
Id. at 3. Complainant was then asked who made the statement and he
answered, "I believe it was [A-2]. Id. Finally, complainant was asked
if A-2 specifically told him that there would be problems with the
EEO and he answered "yes." Id. In a subsequent affidavit, also dated
August 19, 1999, complainant indicated that A-2's comments were made in
a joking manner.
4In denying complainant's claim that he told complainant that he was
aware of his previous disciplinary problems, A-1 testified that he
only discussed the differences in complainant's performance between
his first supervisor, B-1, and A-2. According to A-1, he did not
understand complainant's negative attitude towards A-2 because it
appeared complainant had a better working relationship with A-2 than
B-1. A-1 noted that complainant's performance had improved from fully
successful under B-1 to highly satisfies and even outstanding under A-2.
5Based on the agency's ratings, Complainant received a score of 17, C-1
received a score of 19, Candidate-1 received a score of 20, Candidate-3
received a score of 18, and Candidate-5 received a score of 16.
6Apparently, A-1 placed a great deal of importance on the management
principles articulated in a book on re-inventing corporations.
His first four interview questions dealt with this book. We note
that with respect to promotions to managerial level, professional and
specialized positions, the use of subjective criteria is generally
acceptable. Camillas v. U.S. Navy, 735 F.2d 338, 345 (9th Cir. 1984);
Page v. U.S. Industries, 726 F.2d 1038 1053 (5th Cir. 1984).
7We also note that, during the period between his July 1993 EEO activity
and his nonselection in May 1996, there is no evidence that complainant
suffered any form of retaliation from A-2 or any other management
official.