01994453
10-04-2001
Wayne H. Funkhouser, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Wayne H. Funkhouser v. United States Department of Agriculture
01994453
October 4, 2001
.
Wayne H. Funkhouser,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01994453
Agency No. 960509
Hearing No. 120-97-4352X
DECISION
Complainant timely initiated an appeal from the agency's final agency
decision (FAD), concerning his equal employment opportunity (EEO)
complaint of unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges he was discriminated against on the basis of race
(White) when he was denied the opportunity to act in the position of
Chief, Facility Engineering Branch (FEB). For the following reasons,
the Commission affirms the agency's FAD.
BACKGROUND
The record reveals that complainant, a Maintenance Mechanic Foreman,
WS-4749-15, in the agency's FEB of the Facilities Management and
Operations Division (FMOD), Agricultural Research Service, Beltsville,
Maryland, filed a formal EEO complaint with the agency on May 6, 1996,
alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant was provided
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
Complainant was one of three section heads in the FEB. The other two were
the Designee (as the Acting Chief) (Black) and Section Head A (White).
Deputy Area Director A (White), FMOD, had been complainant's immediate
supervisor since October 3, 1995. Before that time, Deputy Area Director
A had been complainant's second-level supervisor since April 1995, and the
Chief, FEB, had been complainant's first-level supervisor. Prior to April
1995, Deputy Area Director B (White) had been complainant's second-level
supervisor, and the Chief, FEB, had been complainant's first-level
supervisor. Deputy Area Director B, at the time of the hearing before
the AJ, was in the position of Associate Deputy Administrator, SES-301-1.
Around August 1995, Deputy Area Director A proposed the elimination of
the position of Chief, FEB. The reason for the proposal was to lower
costs, reduce mid-level management, and provide for less layering.
Instead of the position of Chief, Deputy Area Director A proposed to
set up a self-directed work team with the Heads of the three sections
in FEB, i.e., complainant, the Designee, and Section Head A, reporting
directly to Deputy Area Director A.
On or about October 3, 1995, complainant was informed that he was being
temporarily detailed to the position of Energy Conservation Specialist,
involving a temporary promotion from the WS-4749-15 grade level to
the GS-0301-13 grade level. Complainant received approximately $1,400
in additional compensation as a result of the temporary promotion. On
the same date complainant was informed of his temporary promotion, the
Chief (White), FEB, was informed that he was being reassigned to the
Modernization Office, FMOD. Following complainant's temporary promotion
and the Chief, FEB's reassignment, the Designee was senior to Manager
A and was assigned the position of Acting Chief. The Designee was
officially detailed to the position of Chief, FEB, effective November
6, 1995, not to exceed March 4, 1996. Although the detail was not to
exceed 120 days, the Designee was requested to continue acting as Chief
for a short period following the end of the official detail until the
paperwork could be completed to eliminate the position.
Complainant was not given the option of refusing the temporary promotion
even though he informed Deputy Area Manager A that he would rather
have been made Acting Chief, FEB, rather than receive the temporary
promotion. However, complainant, the Designee, and Manager A had
previously acted as Chief of FEB. Complainant had done so more often
than the Designee or Manager A. None of the three had acted in the
position for a period as long as 120 days.
Complainant testified that he would have preferred to have been placed
in the position of Acting Chief, FEB, rather than the Energy Conservation
Specialist position. Complainant testified that he believed his race was
a consideration when he was not made Acting Chief, FEB. Complainant,
while on detail as Energy Conservation Specialist, sent two written
requests, February 1, 1996, and February 23, 1996, to Deputy Area Manager
A, asking for the opportunity to serve as Chief, FEB. Deputy Area
Manager A responded in a memorandum to complainant informing complainant
that he had �decided to place the Chief position on hold with intent to
abolish it.�
The AJ found that complainant established a prima facie case of race
discrimination. However, the AJ found that the agency articulated
a nondiscriminatory explanation for its action, i.e., complainant had
been temporarily promoted to the Energy Conservation Specialist position
because of his technical background and his analytical ability. The AJ
found that complainant failed to show that the agency's nondiscriminatory
explanation for its action was pretext. Specifically, the AJ found that
complainant failed to present probative evidence to establish direct
evidence of discriminatory animus or to establish that the agency's
articulated reason was not credible. The AJ noted that complainant's
qualifications were not so superior to the Designee's as to compel a
finding of pretext. In addition, the AJ indicated that the agency had
the discretion to carry out its business as it saw fit, and could act
for a good reason, a bad reason or no reason at all, provided it was
not motivated by a discriminatory reason. Finally, the AJ pointed out
employers have even greater flexibility when choosing management-level
employees, because of the nature of such positions. The agency's FAD
implemented the AJ's decision.
On appeal, complainant especially calls into question the credibility
of Deputy Area Director A. Complainant emphasizes the credibility of
those witnesses who testified on his behalf. Complainant argues that
the Designee had performance problems working at the agency. Complainant
further argues that the Designee was placed in the Acting Chief position
so that Deputy Area Director A could look good in terms of advancing
minorities to managerial positions. Complainant additionally submits
that the position of Acting Chief could have resulted in a potential for
promotion or future opportunities at a higher grade in management and
would have been a lucrative addition to his resume and lend credibility
to work experience as a manager. Complainant also questions a number of
the AJ's findings of fact.
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).
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A complainant 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 reason 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). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the complainant to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of discrimination by showing
that he is a member of a protected group and that he was treated less
favorably than other similarly situated employees outside his protected
group. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864, 865
(6th Cir. 1975). Complainant may also set forth evidence of acts from
which, if otherwise unexplained, an inference of discrimination can
be drawn. Furnco, 438 U.S. at 576.
The 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, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
The agency has articulated a legitimate, nondiscriminatory reason
for its failure to designate complainant as Acting Chief, FEB, i.e.,
complainant had been temporarily promoted to the Energy Conservation
Specialist position because of his technical background and his
analytical ability. Indeed, we note that complainant acknowledged that
the Energy Conservation Specialist position was a recommendation that
he developed.<1> Complainant has not shown pretext.
As the AJ recognized, an employer has the discretion to determine how
best to manage its operations and may make decisions on any basis except
a basis that is unlawful under the discrimination statutes. Furnco,
supra; Nix v. WLCY Radio/Rayhall Communications, 738 F.2d 1181 (11th
Cir. 1984). An employer is entitled to make its own business judgments.
The reasonableness of the employer's decision may of course be probative
of whether it is pretext. The trier of fact must understand that the
focus is to be on the employer's motivation, not its business judgment.
Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979).
The AJ found that the agency's articulated reasons, concerning both
why complainant was temporarily promoted to the Energy Conservation
Specialist position and why the Designee was temporarily detailed as
Acting Chief, FEB, were credible. AJ Decision at 22. The AJ thus
essentially found that Deputy Area A's testimony was credible. The
Commission therefore notes that the credibility determinations of the AJ
are entitled to deference due to the AJ's first-hand knowledge, through
personal observations, of the demeanor and conduct of the witnesses
at the hearing. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990).
To the extent complainant seeks to characterize his complaint as a
selection case, the Commission notes that in nonselection cases, pretext
may be found where the complainant's qualifications are demonstrably
superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981).
However, an employer has the discretion to choose among equally
qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061
(6th Cir. 1981). Additionally, an employer has greater discretion when
filling management level or specialized positions. Wrenn v. Gould,
808 F.2d 493, 502 (6th Cir. 1987).
The AJ found that complainant's qualifications were not so superior to the
Designee's as to compel a finding of pretext. On appeal, complainant does
not appear to contest the AJ's finding. Complainant does not question
that the Designee was qualified to be made Acting Chief. Indeed, both
had served as Acting Chief in the past. The Chief position was a GS-13
managerial position.
Complainant points out that the former Chief, FEB, alleged that the
Designee had some performance problems, but that Deputy Area Director
B protected the Designee and tried to get the Designee's performance
ratings raised and did not allow written disciplinary or counseling
memoranda to be given to the Designee. The AJ found, however, that Deputy
Area Director B credibly denied the allegation. As previously indicated,
the credibility determinations of the AJ are entitled to deference.
The Commission also recognizes that the use of subjective criteria were
apparently among the reasons the designee was chosen in the instant case,
i.e., one of complainant's witnesses, Security Manager (White), suggested
the Designee was chosen because of the Designee's ability to deal with
Deputy Area Director A, and the Designee's ability to deal with the
Union head. The Commission has recognized that the use of subjective
criteria may offer a convenient pretext for unlawful discrimination.
Wilson v. U.S. Postal Service, EEOC Request No. 05921062 (August 12,
1993). On the other hand, subjective criteria are frequently relied upon
in promotions to supervisory or management positions, and the employer has
greater discretion when filling management level or specialized positions.
Wrenn v. Gould, supra. We do not view the Designee's ability to deal
with Deputy Director A and the Designee's ability to deal with the Union
as pretext for discrimination.
Notwithstanding the testimony that the Designee was placed in the Acting
Chief position because it was more advantageous in terms of career
and promotional opportunities, there is no evidence that the Designee
received any benefit other than a $1,500 award from this detail, which
is approximately the same amount that complainant received as a result of
his temporary promotion. Indeed, the Designee, who wanted and applied for
the position of Energy Conservation Specialist, was not selected for it.
We further note that Deputy Area Director A explained that he did not make
complainant Acting Chief following the end of the Designee's official
detail because of the short period of time before the position was to
be officially eliminated and he felt it was more important to spend
complainant's time trying to set up the self-directed work team in the
Energy Conservation Specialist position.
Although complainant questions the accuracy of a number of the AJ's
findings of fact, he has not sufficiently established that such findings
of fact were material error. For example, complainant indicates that,
contrary to the AJ's finding, the Chief of FEB did not propose or
approve disciplinary action as necessary. See AJ's Finding of Fact 9.
The Commission finds that substantial evidence supports the AJ's finding
of no discrimination.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, we AFFIRM the agency's final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
October 4, 2001
Date
1 Nevertheless, it appears that complainant prepared and wrote the
position as a GS-11/12 staff person position to report directly to him.