01965627
10-02-1998
Steven B. Davidson Appellant, v. Daniel S. Goldin, National Aeronautics and Space Administration, Administrator, (Ames Research Center), Agency.
Steven B. Davidson v. National Aeronautics and Space Administration
01965627
October 2, 1998
Steven B. Davidson )
Appellant, )
)
v. ) Appeal No. #01965627
) Agency No. #NCN-95-ARC-A039
Daniel S. Goldin, )
National Aeronautics and )
Space Administration, )
Administrator, )
(Ames Research Center), )
Agency. )
______________________________)
DECISION
INTRODUCTION
On July 18, 1996, appellant timely initiated an appeal to the Equal
Employment Opportunity Commission (Commission) from a final agency
decision 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 appeal is accepted by the Commission in
accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issues on appeal are: (1) whether appellant has established by a
preponderance of the evidence that the agency discriminated against
him on the bases of race (Black) and sex (male), and because of a
pattern and practice of disparate treatment against Black males, when
he was not selected in March 1995 for the position of Program Analyst,
GS-343-12/13, with the Ames Research Center (ARC), Office of Comptroller,
Resource Management Office, (the agency), advertised under vacancy
announcement number ARC-94-81; and (2) whether appellant has established
by a preponderance of the evidence that the agency discriminated against
him on the bases of race (Black) and sex (male) when he was subjected
to discriminatory statements and questions about his race on December
9, 1994, and January 5, 1995, during the interview process for vacancy
announcement number ARC-94-81<1>.
BACKGROUND
The record reveals that appellant filed a formal EEO complaint with
the agency on March 9, 1995, alleging that the agency discriminated
against him as referenced above. Following the agency's acceptance of
the complaint, it conducted an investigation. At the conclusion of the
investigation appellant requested a final agency decision based on the
existing record.
ANALYSIS AND FINDINGS
Appellant's allegations of race and sex discrimination, including "sex
plus" discrimination constitute a claim of disparate treatment which
is properly analyzed under the three-part test and allocation of proof
as set forth in McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981);
Furnco Construction Company v. Waters, 438 U.S. 567 (1978). See also
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 715-716 (1983)<2>.
Under this standard, it is appellant's burden to establish a prima facie
case. Specifically, appellant must establish that there is some substance
to the allegation of discrimination. This means that appellant must
present a body of evidence such that, were it not rebutted, the finder of
fact could conclude that unlawful discrimination did occur. The burden
then shifts to the agency to articulate a legitimate nondiscriminatory
reason for its action(s). Burdine, 450 U.S. at 253 (1981). In this
regard, the agency need only produce evidence sufficient to "allow the
trier of fact rationally to conclude" that the agency's action was not
based on unlawful discrimination. Id. at 257. Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely a
pretext for discrimination. Burdine, 450 U.S. at 256. See also St. Mary's
Honor Center, 509 U.S. at 507. Although the burden of production may
shift, the burden of persuasion, by a preponderance of the evidence,
remains at all times on the appellant. Burdine, 450 U.S. at 256.
In the present complaint, appellant can establish a prima facie case
of discriminatory non-selection by showing: (1) that he is a member
of the protected groups; (2) that he applied for, and was qualified
for, the position for which the employer was seeking applicants; (3)
that despite his qualifications, he was rejected; and,(4) a similarly
situated applicant, not in his protected groups was chosen for the
position under circumstances which, if unexplained, would support an
inference of discrimination. Keyes v. Secretary of the Navy, 835 F.2d
1016, 1023 (1st Cir. 1988).
In a non-selection case, pretext can be established through a showing
that the complainant's (appellant's) qualifications for the position
at issue are observably superior to those of the selectee. See Bauer
v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981). However, an agency
is free to select from among equally desirable candidates. See Canham
v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Additionally,
an employer has greater discretion when choosing management level
employees. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). Where there
are two equally desirable candidates competing for the same position,
the selecting official may exercise his or her prerogative in choosing
between the candidates, and a trier of fact should not substitute his
or her judgment for the legitimate exercise of managerial discretion.
Bennett v. U.S. Postal Service, EEOC Appeal No. 01893757 (April 20,
1990); see Burdine, 450 U.S. at 259.
Issue One
Applying this legal standard, appellant has established that he is a
member of the protected groups by virtue of his sex (male) plus race
(Black). Furthermore, the record reveals that appellant applied,
and was not selected for the position for which he was qualified.
Four similarly situated applicants were selected, none of whom were in
appellant's protected groups: two are white males, one is a white female,
and one is a Native American/Hispanic male.
The record reveals that the agency was filling the positions as a result
of a reorganization. The agency needed to hire individuals to oversee the
areas of: (1) charge-back systems; (2) personnel salaries and benefits;
(3) program support, which encompassed supercomputers and detail audit
tracking, and (4) research and development analysis, and to oversee the
budgets of three other programs.
The agency has articulated legitimate nondiscriminatory reasons for
not selecting appellant to fill the positions. In particular the
agency was looking to fill each position with an individual who was
detail-oriented and liked working with numbers. It was also looking
for people with an ability to communicate well. The record reveals
that all of the individuals referred for possible selection, including
appellant, were all highly qualified. The agency selected individuals
who appeared to have the most direct experience. The agency stated that
appellant was not selected for the positions because, although he had a
background in program analysis, he did not have the specific skills the
agency was seeking. Furthermore, the agency stated that it did not find
appellant to be equally as qualified as the individuals it selected for
the positions<3>. Although appellant was friendly, communicated well,
and had a broad range of experience, his experience did not include a
great amount of detail-oriented work. Rather, his experience dealt with
larger issues within the programs he had managed. Appellant's answers
to interview questions regarding his specific experience were more
management oriented than detail specific. The agency stated that it
was not comfortable recommending appellant for one of the positions,
each of which was a hands-on position.
The agency selected the following applicants as a result of their
specific and detail oriented experience.
1) The agency selected a Native American/Hispanic male, for the position
involving charge-back systems because he was the best qualified candidate
for the position. Specifically, this selectee was a contractor with
considerable experience and involvement with the financial management of
charge-back systems in the agency's communications division. Also, this
selectee was familiar with the agency's accounting system, and with the
ARC division in general. Moreover, this selectee was the top-rated
candidate on the agency's staffing certificate and was given selection
priority<4>. In addition, the former division chief and technical
assistant for the agency's communication division recommended this
selectee, and encouraged the agency to hire him. After his interview,
the agency was confident that the above recommendation was excellent.
2) The agency selected a white female, who had previously worked
personnel-related costs at an outside organization, for the position
regarding personnel, salaries and benefits. The agency determined that
out of all of the applicants interviewed, this selectee was the only
applicant with the specific skills of personnel salaries and benefits,
which is the exact area in which she would be working at the agency.
The record reveals that this selectee had extensive experience in
salary costing.
3) The agency selected a white male, who was an auditor and had experience
with supercomputers, for the position that dealt with program support
and supercomputers. This selectee had extensive work experience with the
"CRAY Supercomputer," and detailed audit trails, which made him a good
fit for the position. He also had performed ADP audits.
4) The agency selected a white male, who had extensive program analyst
experience for the research and development analyst position, and to
oversee the budgets of three separate programs. This selectee had
been a resource manager at the same outside entity where appellant
had been employed. This selectee's then present supervisor prepared
a recommendation for the position which informed the agency that the
selectee was far and above the best analyst at his then current place
of employment. The agency also determined from the selectee's experience
that he would be able to juggle more than one program office at a time.
The record does not support appellant's allegation that he was more
qualified, both in education and experience, than the four selectees.
The agency stated that it considered both education and experience,
however it placed more weight on experience. All of the selectees
had relevant experience. The agency needed people who could analyze
resources, not manage programs. The record reveals that appellant's
application, indicated that his twelve years in program management were
primarily in managerial capacities. Appellant's interview convinced the
agency that he had general managerial rather than specific knowledge,
and that he did not have substantial experience in analysis. Therefore,
appellant has failed to establish that his qualifications for the position
are observably superior to the selectees qualifications. As a result,
appellant has failed to provide sufficient evidence that the agency's
reasons for not selecting him for the positions at issue were pretextual.
ISSUE TWO
Applying the appropriate legal standard, appellant has established a
prima facie case of race discrimination as set forth above.
The agency has articulated legitimate nondiscriminatory reasons for its
actions. The record does not reveal that during appellant's January 9,
1994, interviews that the agency's selecting officials asked appellant
any discriminatory questions or made any discriminatory statements with
respect to appellant being a Black male. The agency's primary selection
official (S01) stated that he used a standard set of questions for each
applicant interviewed.
Appellant contends that during his January 5, 1995, interview with
the agency's selecting official (SO2), he was subjected to racially
discriminatory comments and questions: (1) when SO2 asked appellant
about mentoring other Blacks at the agency; (2) when the SO2 commented
that appellant was articulate; (3) when the SO2 asked appellant if
he completed his own application, and (4) when the SO2 repeated the
name of the software program appellant used to complete his application
(appellant alleges that he stated that he used the term "Publish It" in
reference to the software program; however, SO2 referred to the program as
"Publi-Shit").
The SO2 stated that he found appellant to be intelligent and articulate,
and that he may have told appellant that appellant was intelligent
and articulate; however, the SO2's intentions were not to imply that
appellant's intelligence had any relationship to him being Black.
In addition, the SO2 stated that appellant had good qualifications,
and was forthright in answering questions. Furthermore, the SO2
acknowledged that he questioned appellant about mentoring. However,
those questions were not discriminatory in nature. Specifically, SO2
asked appellant about mentoring because the agency had an emphasis on
mentoring, especially for groups, e.g., Blacks, which historically
had not benefited from mentoring programs. Whereas, traditionally,
White males had been mentored. The SO2 explained that these questions
were aimed at providing the same resources to other groups (Blacks),
and that these statements were not intended, in any way, to imply that
Black males were inferior. The SO2 continued, stating that he believed
that everyone should have equal access to career advancement resources.
The SO2 denied making the alleged statement "Publi-Shit", in reference to
how appellant completed his application. The SO2 stated that appellant's
application appeared to be very thorough, covered all of the questions,
and had a professional appearance.
Appellant fails to provide any evidence of racial discrimination on behalf
of the SO2, other than appellant's believe that SO2 had a poor opinion
of Blacks. In addition, appellant failed to present any evidence to
support the following: (1) that the SO2 had a condescending view of
Blacks in general; (2) that the SO2's statement that appellant is a
successful Black man represented SO2's belief that Black males "lacked
professional acumen, or other weaknesses that required a mentor", and
(3) that the SO2's questions regarding appellant operating as a mentor
were unlawful and discriminatory because appellant is a Black male.
Therefore, appellant has failed to provide sufficient evidence that
the agency's reasons for not selecting him for the position at issue
were pretextual.
CONCLUSION
Accordingly, after a careful review of the record, including appellant's
contentions on appeal, and the agency's contentions on appeal, it is
the decision of the EEOC to AFFIRM the agency's final decision finding
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct 2, 1998
_______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 On March 6, 1996, the Commission dismissed appellant's allegations of
class discrimination on the bases of race (Black) and sex (male), under
29 C.F.R. �1614.107(a), for failure to state a claim. Appellant failed
to properly pursue this allegation under the class complaint process.
See Davidson v. NASA, EEOC No. 01955552. Appellant did not appeal the
EEOC's decision; therefore, the issue of class discrimination is not
before the Commission for review.
2 The Commission has recognized "sex-plus" as a basis of discrimination,
where appellant alleges that an employer discriminates against a subgroup
of women or men on the basis of a characteristic in addition to sex,
e.g., marital status, race. Phillips v. Martin Marietta Corporation,
400 U.S. 542 (1971); Jeffries v. Harris County Community Action Assn.,
615 F.2d 1025 (5th Cir. 1980); Sprogis v. United Air Lines, 444 F.2d 1194
(1971); Stephens-Siller v. HUD, EEOC No. 01941291 (June 7, 1996).
3 Although, appellant was not one of the agency's first five (5) choices,
the agency interviewed him as a finalist because it thought appellant
had some qualifications for which it was looking.
4 The agency rules governing selection from the staffing certificates
require that the top-rated candidate be selected or eliminated before
other candidates on that certificate can be considered. Although this
particular selectee was interviewed first, since he was the top rated
candidate, the agency did not select him until the interviews were
completed.