01A11115
11-18-2002
Allen D. Ferreira, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, (National Institutes of Health), Agency.
Allen D. Ferreira v. Department of Health and Human Services
01A11115
November 18, 2002
.
Allen D. Ferreira,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
(National Institutes of Health),
Agency.
Appeal No. 01A11115
Agency No. ORS 970015
Hearing No. 120-99-6119X
DECISION
Complainant timely initiated an appeal from the agency's final order
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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final order.
The record reveals that complainant, a Program Analyst, GS-343-12,
at the agency's National Institutes of Health facility, in the Design
Construction and Alteration Branch, located in Bethesda, Maryland,
filed a formal EEO complaint on November 6, 2002, alleging that the
agency had discriminated against him on the bases of national origin
(Hispanic), sex (male), and age (D.O.B. March 3, 1933) when he was not
selected for the position of Senior Advisor to the Assistant Director,
GS-301-13, advertised under Vacancy Announcement Number OR97-010.
At the conclusion of the investigation, complainant received 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.
The AJ found the following: Complainant submitted his application
to the Vacancy Announcement Number OR 97-010. The position was
announced as an Affirmative Action Plan (AAP) goal-targeted position.
This required the Selecting Official (SO) to report to the EEO office
on the EEO characteristics of the applicants and the selectee. He was
also directed to submit a written justification for his selection if
a minority candidate was not selected. The SO and his subordinate
interviewed complainant on February 17, 1997. Soon thereafter,
they interviewed the only other eligible and qualified applicant for
the position, an African-American female (D.O.B. December 18, 1957).
On February 20, 1997, the other applicant was chosen for the position.
For AAP purposes, the SO notified the EEO office that complainant was
�White not of Hispanic origin� because he was unaware of complainant's
national origin or age at the time of the selection.
The AJ concluded that complainant established a prima facie case of
national origin, sex, and age discrimination because the selectee, not in
complainant's protected classes, was selected for the position at issue.
The AJ further concluded that the agency articulated a legitimate,
nondiscriminatory reasons for its action; namely, the selectee had more
recent and relevant experience for the position. The AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
In reaching this conclusion, the AJ found that complainant did not
establish that he was demonstrably superior in his qualifications than
the selectee. Additionally, complainant did not present probative
evidence that any discriminatory animus toward his protected classes
motivated SO's decision to not select him. The agency's final order
implemented the AJ's decision.
On appeal, complainant contends that the AJ erred with respect to that
numerous factual conclusions. Complainant also appeals the denial by
the AJ of a motion, submitted in complainant's written closing argument,
to have the case also considered under the theory of disparate impact in
regards to the methods of obtaining the data on the EEO characteristics of
each candidate for AAP purposes. Additionally, complainant contends that
the AAP resulted in discrimination against him because he was perceived
as Caucasian and requests that the FAD, finding no discrimination,
be reversed. The agency requests that we affirm its FAD.
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). An AJ's conclusions of law are subject to a
de novo standard of review, regardless of whether a hearing was held.
As an initial matter, we find no error with the AJ's decision to deny
complainant's request to have the case considered under disparate impact
as well as disparate treatment in regards to the methods of obtaining data
for AAP purposes. Complainant argues that the procedure for determining
the EEO characteristics of candidates resulted in discrimination.
The testimony of the Personnel Management Specialist revealed that
if circumstances arose where the SO was unable to determine the EEO
characteristics of candidates, the SO was to use his best judgement.
She also provided that it was prohibited for the SO to ask a candidate
to identify their EEO characteristics. As a result of this policy,
complainant alleges that he was categorized as �White not of Hispanic
origin.� Generally, to establish a prima facie case of disparate
impact, complainant must show that an agency practice or policy, while
neutral on its face, disproportionately impacted members of the protected
classes through presentation of statistical evidence that demonstrates a
statistical disparity that is linked to the challenged practice or policy.
Obas v. Department of Justice, EEOC Appeal No. 01A04389 (May 16, 2002),
citing Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988).
Complainant must identify the specific practice challenged, show
statistical disparities, and show that the disparity is caused by the
challenged practice. Id. Statistical disparities must be �sufficiently
substantial such that they raise an inference of causation.� Watson,
487 U.S. at 995. In the case at hand, the complainant has not presented
sufficient statistical evidence to establish a prima facie case that
this method of gathering EEO characteristics of applicants has resulted
in a disparate outcome, therefore, the AJ's denial was proper.
To prevail in disparate treatment claims such as these, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
generally establish a prima facie case for each claim by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). It is undisputed that complainant
established a prima facie case for age, national origin, and sex
discrimination, therefore, we proceed to analyze the agency's articulated
legitimate, nondiscriminatory reasons for its conduct. McDonnell Douglas,
411 U.S. at 820. To ultimately prevail, complainant must prove, by a
preponderance of the evidence, that the agency's explanation is a pretext
for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC
Request No. 05950842 (November 13, 1997). 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). Additionally, where a complainant alleges that he
has been disparately treated by the employing agency as a result of
unlawful age discrimination, "liability depends on whether the protected
trait (under ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000).
Complainant's age "must have actually played a role in the employer's
decision-making process and had a determinative influence on the outcome."
Id.
Ultimately, the agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing
authority absent evidence of unlawful motivation. Texas Department of
Community Affairs v. Burdine, 450 U.S. at 259; Vanek v. Department of
the Treasury, EEOC Request No. 05940906 (January 16, 1997). Although the
Commission finds that complainant properly established a prima facie
case of national origin, sex, and age discrimination, we also find
that complainant failed to present evidence that more likely than not,
the agency's articulated reason for its actions were a pretext for
discrimination. In so finding, we note that while complainant was
qualified for the position, he was not demonstrably superior in his
qualifications, and the SO's decision not to select him was not shown
to be motivated by discriminatory reasons. Additionally, complainant's
contention that the AAP resulted in discrimination against him in the
selection process is unavailing in regards to his claim of discrimination
on the basis of his Hispanic national origin. In an attempt to establish
that the agency's legitimate, nondiscriminatory reason was a pretext for
discrimination, complainant argues that the selectee was preselected.
However, while we are not convinced that preselection occurred, we
note that we have held that preselection, per se, does not establish
discrimination under Title VII when it is based on qualifications of the
selected individual and not some basis prohibited by Title VII. McAllister
v. United States Postal Service, EEOC Request No. 05931038 (July 28,
1994). Because we find that complainant has failed to offer probative
evidence demonstrating that the agency's selection decision was based
on prohibited bases under Title VII or ADEA, we also find that if the
selectee as preselected, no discrimination occurred.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and 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, 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, we affirm the agency's final order.
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
November 18, 2002
__________________
Date