0120122371
10-19-2012
Theoble Young, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.
Theoble Young,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.
Appeal No. 0120122371
Agency No. BEP-11-0175-F
DECISION
On May 8, 2012, Complainant filed an appeal from the Agency's April 24, 2012, final decision 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated against on the basis of his race (African American) when on October 20, 2010, he was not ranked Best Qualified for an Electrician Assistant Supervisor position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of Electrician Assistant Supervisor at the Agency's Bureau of Engraving & Printing in Washington, D.C. Complainant was certified in Electrical Theory, Calculations, and NEC Code. He also had a Masters degree in Electrical Engineering, held the appropriate electrician licenses and certifications, and had 30 years of experience as an electrician. Initially, Complainant applied for the position of Electrician Assistant Supervisor on August 23, 2010. The vacancy, however, had to be re-announced because information regarding that position had been compromised. The vacancy was re-announced and was processed in another office. Complainant reapplied for the position. Complainant's candidacy was certified to a Delegated Examining Unit Register (DEU), which is the list for applicants that are not currently employed by the government. The applications received were processed and veteran's points ranging from 5 points to 10 points were assigned. Six applicants received preference points but Complainant, who also had military service, through an oversight by the Agency did not receive the five points owed to him.
The record reveals that a panel was developed in order to review the 153 applications. The panel worked with scoring instructions that were given to everyone. Complainant scored 90 points out of a possible score of 100. It was noted that he did not address six of the KSA's. Complainant was one of 38 people out of 153 applicants who scored 90 out of a possible 100. Three people scored 100. The three who scored 100, completely addressed each KSA and gave the panel a complete written description of the respective requirements. An additional factor which gave applicants a distinct advantage was current federal employment, particularly with the Bureau of Engraving and Printing. Following the rating and ranking of the applicants, applicants were certified on three different lists. Those from outside the government were certified to the DEU list, federal government candidates were certified to the Merit Register, and those with intellectual or physical disabilities were certified to the Schedule A certificate. The Human Resources (HR) specialist referred the top five candidates on the DEU register, the Merit Register and the Schedule A certificate to the selecting official. Complainant was not among the top five candidates referred. The record indicates that even if he had been provided the five additional points owed to him, he still would not have been referred to the selecting official, because the top five candidates on the DEU list each scored more than 95 points. The selecting official selected one candidate from the Merit Register and one candidate from the Schedule A certificate. The selecting official did not select anyone from the DEU register.
On October 26, 2010, Complainant was advised by a personnel employee that he had not been selected for the position because he did make the best qualified list. Complainant believed that he should have been ranked higher on the best qualified list because he had 30 years of experience, the appropriate credentials and the analytical capabilities in a variety of areas.
Therefore, on December 27, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when on October 20, 2010, he was not ranked Best Qualified for an Electrician Assistant Supervisor position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the Agency argued that race was not a factor in the selection although Complainant's race was known to some of the rating officials because Complainant included a picture of himself in his application package. The Agency explained that Complainant was not referred to the selecting official, because he was not among the top five scoring candidates even with the added five point veterans' preference. The rating officials indicated that unlike the selectees both who were white, Complainant failed to address all of the KSAs in his application. Moreover, the rating officials maintained that the selecting official made no selections from the DEU certificate which is where Complainant would have been listed.
CONTENTIONS ON APPEAL
On appeal, Complainant indicated that he has no new evidence or anything else to bring forth explaining his position. He maintains that throughout this process no one has outlined to his satisfaction why the candidate who was awarded the position was more qualified than he. He requests that their credentials be compared side by side to truly see who is the best qualified.
In response, the Agency argues that Complainant's brief is untimely and therefore should not be considered. Notwithstanding, the Agency maintains that it articulated a legitimate, nondiscriminatory reason for it action, namely that Complainant was not discriminated against based on his race when he was not rated high enough to be placed on the DEU certificate issued to the selecting official. The Agency indicates that the record clearly supports the rating panel's determination that other candidates listed on the DEU were more qualified for the Electrician Assistant Supervisor Position than Complainant. In addition to the five candidates on the DEU list who were referred to the selecting official on that certificate, fourteen other candidates were rated higher than Complainant by the rating panel this includes Complainant's score with the five point preference added. The Agency maintains that Complainant simply did not score high enough to be referred to the selecting official because he did not fully respond to the KSAs. The Agency asserts that Complainant failed to show that its articulated reasons were pretext for discrimination.
Further, the Agency contends that the record does not support any contention that Complainant's qualifications were demonstrably superior to the applicants placed on the DEU certificate. Moreover, because the position at issue was a management position, the Agency maintains that it was entitled to greater deference. Additionally, the Agency asserts that due to veterans' preference rules, had the selecting official elected to make a selection from the DEU, the selecting official would have been required to select one of the three 10-point veterans' preference applicants who possessed service-connected disabilities of 10 percent or more. Ultimately, however a selection was not made from the DEU list. The Agency requests that the FAD be affirmed.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that even if we assume arguendo that Complainant established a prima facie case of discrimination based on race, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not referred to the selecting official based on his score. Only the top five candidates on the DEU list, all of who scored higher than 95, Complainant's corrected score, were referred to the selecting official. The Agency explained that while Complainant's score was good, he did not receive a score of 100 points because he failed to fully answer six of the KSAs regarding the position. We find that the evidence does not show and Complainant did not demonstrate that the required questions were addressed. The record also shows that fourteen other applicants on the DEU list scored higher than Complainant. Moreover, we note that no selection was made from the DEU list. We find that Complainant failed to show that the Agency's articulated nondiscriminatory reasons were pretext for discrimination. Complainant has failed to show that discriminatory animus was involved regard this matter.
In response to Complainant's request on appeal, that a direct comparison be made between him and the selectee, the Commission notes that a comparison to the selectee is generally reserved for instances where both parties were found to be Best Qualified and referred to the selecting official. Nevertheless, in this case, the record reveals that the selectee first and foremost answered all of the KSA's, he has worked in the field for many years, he has the appropriate licenses and certifications and he has worked for the Agency since 1998. The selectee's record shows that while working for the Agency he received outstanding evaluations, and received many honors and awards. Management indicated that as this was a supervisory position, applicants with current government experience especially with the Bureau of Engraving and Printing had a distinct advantage. The selectee also worked in the area of the vacancy. Accordingly, the Commission finds that Complainant failed to show that he was subjected to discrimination on the basis of race when he was not rated as Best Qualified for the position.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD which found no discrimination had been proven.
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
___10/19/12_______________
Date
2
0120122371
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122371