01A14668
12-04-2002
Alexander J. Qatsha, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Alexander J. Qatsha v. Department of the Navy
01A14668
December 4, 2002
.
Alexander J. Qatsha,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A14668
Agency No. 97-00033-001
Hearing No. 100-98-7830X
DECISION
INTRODUCTION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning his 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 alleged in his complaint that he
was subjected to unlawful retaliation for his prior participation in
protected equal employment opportunity (EEO) activity when (1) he was
continually harassed, and, in February, 1996, he was not placed in the
position of Human Resources Director, GS-201-14, as a result of Transfer
of Function; and (2) on May 19, 1997, he was not selected for the position
of Human Resources Director, GS-201-14. Complainant also alleged in his
complaint that he had been subjected to unlawful discrimination on the
basis of his national origin (Palestinian-American), as well as subjected
to unlawful retaliation for his prior participation in protected equal
employment opportunity (EEO) activity, when (3) on December 20, 1996,
he was not selected for the position of Program Manager, GS-340-15.
For the following reasons, the Commission AFFIRMS the agency's FAD.
BACKGROUND
The record reveals the following information pertinent to this appeal.
Prior to the agency actions at issue, complainant was employed as a
Pacific Region Personnel Officer, GS-201-14, at the agency's Military
Sealift Command, Pacific, in Oakland, California. In late 1995 and
early 1996, the agency decided to combine the personnel management
functions�which had until that time been separately handled in east
and west coast offices�into a single, consolidated personnel management
center. During a February, 1996 meeting regarding the consolidation,
complainant was told by a member of management (M1) that he would be
placed in the position of Human Resources Director, GS-201-14, in the new
consolidated office, through a Transfer of Function action. The next day,
however, another management official (M2) informed complainant that he
would not be placed in the new Human Resources Director position, and that
instead he would be placed in the position of EEO Manager, GS-260-13/14.
When complainant asked who had made the decision, M2 stated it had been a
�command decision,� and no further explanation was provided at that time.
On May 1, 1996, another management official (M3) identified himself
as the person responsible for deciding to not place complainant in the
Human Resources Director position.<1> M3 stated that the decisionmaking
authority regarding the Human Resources Director position had been
delegated to him, and that he made the decision himself, with input
from four other agency officials, including M1 and M2. M3 stated that
his decision was based upon complainant's performance problems and poor
work habits, but he did not further explain what performance problems
or poor work habits were at issue.<2> M3 also stated that the Human
Resources Director position would not be competitively filled, and that
another person had already been selected to fill the position. During a
subsequent follow-up meeting on June 19, 1996, however, M2 stated that
complainant had been placed in the EEO Manager position �in lieu of
an adverse action.� M2 also subsequently stated that the position at
issue �had to be competed,� and that no one could be �sourced� into the
position, as complainant claimed should have occurred.
Subsequent to the agency's decision to not place complainant in the
Human Resources Director position by a Transfer of Function placement,
complainant submitted application materials for a vacant Program Manager,
GS-340-15, position, was determined to be among the best qualified
candidates for the position, but was not selected. A short time later,
the agency advertised the vacancy for the newly-consolidated Human
Resources Director position discussed above. Complainant applied for
that position and was determined to be one of the three best-qualified
candidates, but was not selected.
Complainant presented the above claims to an EEO counselor and
subsequently filed two formal complaints of discrimination. The
agency consolidated the complaints, and initiated an investigation
into complainant's allegations. At the conclusion of the agency's
investigation into the consolidated complaint, complainant was informed
of his right to request a hearing before an EEOC Administrative Judge
or, alternatively, to receive a FAD by the agency. Complainant initially
requested a hearing, but later withdrew that request and instead asked
the agency to issue a FAD.
In its FAD, the agency concluded that complainant failed to prove his
discrimination claims. The agency first found that complainant failed
to establish a prima facie case of national origin discrimination,
as alleged in claim (2), as there was no evidence that the agency
officials responsible for the selection decision at issue in that claim
were aware of his national origin at the time of the nonselection.
The agency then found that complainant had established a prima facie
case of retaliation as to claims (1) and (3), as he had shown that he
had filed an EEO complaint in 1994, had alleged in 1995 a breach of a
settlement agreement resolving that complaint, and had �brought further
management attention to himself when he pursued a harassment complaint
in 1996, at the same time management was making decisions on assignment
of positions at [the newly-consolidated personnel office] and selection
for the [Personnel Manager] position.� The agency also found that
complainant had established a prima facie case of retaliation as to claim
(2), as M2 was a member of the selection panel for the nonselection at
issue in claim (2), and, at the time of that nonselection, he was aware
of complainant's EEO activity regarding claim (1).
The agency also found, however, that it had articulated legitimate,
nondiscriminatory reasons for its actions. It found that as for claim
(1), while complainant had experienced performance problems in 1992-93,
he had been rated �Highly Satisfactory� and had received monetary
awards for his job performance in the rating years 1993 through 1995
and had received an �Outstanding� rating for the 1995-96 rating period.
Despite this evidence regarding complainant's recent job performance, and
acknowledging that �the corporate assessment of complainant's performance
was at odds with his 1996 Outstanding rating,� the agency concluded that,
as management had problems with complainant's performance in 1993 and
had recently made statements expressing serious concerns regarding his
performance in 1996, it was more likely than not that the decision to
place complainant in the EEO Manager's position was based upon legitimate
business reasons rather than in retaliation for his prior EEO activity.
We note that the agency made no mention in the FAD of the �continual
harassment� allegation contained in claim (1).
The agency further found that, regarding claims (2) and (3), complainant
had been among the best qualified candidates for each of the positions
at issue, but the agency had determined that other candidates were more
worthy of selection. As for claim (2), the agency found that in rating
the candidates based upon their application materials, the selection panel
had deadlocked on three candidates�complainant, the selectee, and another
individual�and decided to conduct telephone interviews of the three to
resolve the impasse. The panel decided to ask each candidate a series
of questions, and the panel determined that the selectee had provided
better answers than complainant, as, unlike complainant, the selectee
focused her answers on issues critical to the position and the employees
the position served. As for claim (3), the agency found that the rating
panel for that selection had determined the three best candidates for the
position based upon the application materials submitted, that complainant
was among those three candidates, and that, after interviewing all three
candidates, the panel recommended the selectee to the selecting official
as the best candidate. The agency found that this recommendation was made
based upon the selectee's demonstrated understanding of key components
of the position, which they found to be superior to that of complainant.
The agency also found that complainant failed to establish that its
articulated reasons for its actions were mere pretext for unlawful
discrimination. It noted that while complainant disagreed with its
selection decisions, he had not shown that his qualifications were
so plainly superior to those of the respective selectees to require
a finding of pretext. The agency concluded that complainant failed
to prove his discrimination claims by a preponderance of the evidence.
This appeal followed, in which complainant argues that the contradictory
evidence regarding the agency's articulated reasons for deciding to not
place him in the Human Resources Director position based upon Transfer of
Functions warrants a finding of discrimination on that claim. The agency
requests that we affirm the FAD for the reasons stated therein.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a FAD issued without a hearing before an EEOC
Administrative Judge, see 29 C.F.R. � 1614.110(b), we apply a de novo
standard of review, and our decision is based upon a preponderance of
the evidence. 29 C.F.R. � 1614.405(a).
Harassment
We first address complainant's harassment allegation contained in claim
(1). Harassment is actionable only if the harassment to which complainant
has been subjected was sufficiently severe or pervasive to alter the
conditions of his employment. Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (Mar. 13, 1997). In order to establish a claim
of harassment in retaliation for engaging in protected EEO activity,
complainant must show that: (1) he engaged in prior EEO activity; (2)
he was subjected to unwelcome conduct related to his prior EEO activity;
(3) the harassment complained of was based on his prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. Roberts v. Department of Transp., EEOC
Appeal No. 01970727 (Sept. 15, 2000) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982)).
In the instant matter, there is insufficient evidence to support
complainant's allegation of retaliatory harassment. Even if we assume
for the sake of this appeal that the harassing behavior alleged by
complainant, which he claims consisted of several remarks by various
management officials on a number of subjects, including an allegation
that in late October, 1996, M2 shouted and swore at complainant in
the workplace, actually took place, there is no indication that these
statements were either related to complainant's prior EEO activity or
based upon his prior EEO activity. Nor is there any indication that
the statements at issue were sufficiently severe or pervasive to alter
the conditions of complainant's employment. Accordingly, we find that
complainant failed to prove his claim of retaliatory harassment.
Disparate Treatment
In claims, such as those presented by complainant, which allege disparate
treatment based upon national origin and/or retaliation for participation
in the EEO process, and where there is an absence of direct evidence of
such discrimination, the allocation of burdens and order of presentation
of proof is a three-step process. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03 (1973); Hochstadt v. Worcester Found. for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass. 1976) (extending
application of the McDonnell Douglas disparate treatment analytical
framework to claims of retaliation), aff'd, 545 F.2d 222 (1st Cir. 1976).
First, complainant must 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. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
As for complainant's national origin claim, we agree with the finding
of the agency that there is no indication that complainant's national
origin played any role in the nonselection at issue in claim (2). While
complainant argues that his national origin was known to the selection
panel in claim (2), he presented no evidence in support of that claim,
nor any other evidence which shows that his national origin played any
role in the nonselection at issue. We are therefore unpersuaded by
complainant's national origin discrimination claim.
We next examine complainant's retaliation claims. As mentioned above,
the agency found in its FAD that complainant had established a prima
facie case of retaliation as to claim (1). To establish a prima
facie case of discrimination in reprisal for prior EEO activity,
complainant must show that he had engaged in protected activity, the
alleged discriminating officials were aware of the protected activity,
he was subsequently subjected to adverse treatment, and the adverse
action followed the protected activity within such a period of time
that retaliatory motivation may be inferred. Packard v. Department
of Health & Human Serv., EEOC Appeal Nos. 01985494, 01985495 (Mar. 22,
2001) (citations omitted); see also Smithson v. Social Security Admin.,
EEOC Appeal No. 01A03598 (Aug. 23, 2001) (same).
In finding that the alleged discriminating officials were aware of
complainant's prior EEO activity, the agency imputed constructive
knowledge to those officials based upon complainant's prior EEO
activity with the agency. The Commission has held, however, that
the mere assertion by a party that his prior EEO activity was common
knowledge was insufficient to establish that particular individuals had
prior knowledge of such EEO activity. Rauseo v. United States Postal
Serv., EEOC Request No. 05940975 (July 13, 1995). While complainant
claims that management was aware of his prior EEO activity, there is no
evidence that M3, who claimed responsibility for making the decision to
not transfer complainant to the new Human Resources Director position,
had any knowledge of complainant's prior EEO activity. Nor is there
any evidence that any of the individuals M3 identified as having
provided him with their input on the issue had any such prior knowledge.
While complainant argues on appeal that M2, who was identified as having
provided input on M3's decision regarding complainant, was involved in his
�prior EEO cases,� he provided no evidence�such as documents generated
during the course of these prior EEO activities, statements from others
involved in those activities, etc.�in support of that assertion, and M2
specifically denied in his affidavit prior knowledge of complainant's
EEO activities. As the record is devoid of any evidence from which it
can be concluded that M3 or those advising him had prior knowledge of
complainant's previous EEO activity, complainant has not established a
prima facie case of retaliation as to claim (1).<3>
We further find that, as for claims (2) and (3), the record on appeal
shows that the agency correctly concluded that it had articulated
legitimate, nondiscriminatory reasons for its selection decisions.
As for complainant's pretext arguments, we note that, despite his claim
that he was better qualified than the selectees in each case, it is well
established that, when choosing among highly qualified candidates for
a position, employers generally have broad discretion to set policies
and make personnel decisions, and should not be second-guessed by a
reviewing authority, absent evidence of unlawful motivation. Burdine,
450 U.S. at 259. We find that the record does not support a finding
that complainant's qualifications were �so plainly superior [to those
of the selectee in each case] as to require a finding of pretext.�
Cadle v. Department of Agric., EEOC Appeal No. 01997044 (June 3, 2002)
(citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981)). Nor do
we find any other evidence in the record which would support a finding
of pretext as to these claims. Accordingly, we find that complainant
has not proven, by a preponderance of the evidence, that the agency's
explanations were pretext for unlawful discrimination, and has therefore
failed to satisfy his ultimate burden of persuading the trier of fact
that he was subjected to unlawful discrimination as claimed.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, it is the decision of the
Commission to AFFIRM the agency's FAD.
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
December 4, 2002
Date
1 The information in the record regarding M3 comes from a July 1, 1996
EEO Counselor's report, in which the EEO Counselor described numerous
conversations she had with M3 regarding claim (1). Neither party has
contested the validity of the EEO Counselor's report regarding her
descriptions of her conversations with M3. M3 subsequently left the
employment of the agency, and was not contacted by the EEO Investigator
subsequently assigned to the complaint.
2 The EEO Counselor reported that she asked M3 to provide documentation
of complainant's alleged performance problems, but no such documentation
was provided.
3 Because we find that complainant failed to establish a prima facie
case as to claim (1), we need not address whether the agency properly
found that it had articulated a legitimate, nondiscriminatory reason
for its actions which complainant failed to prove was mere pretext for
unlawful discrimination.