0120121615
08-22-2012
Alvin Murphy, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Alvin Murphy,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120121615
Agency No. DOSF01808
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 8, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Regional Program Officer, GS-13, for the Bureau of International Information Programs (IIP) at the Agency's facility in Washington, D.C.
On November 14, 2007, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when he was not selected for the position of Supervisory Program Officer, GS-0301-14, under Vacancy Announcement Number IIP-2007-0037.
The record shows that a vacancy announcement for the position of Supervisory Program Officer was posted by the Agency on May 17, 2007. The announcement stated in part that: "The position manages and directs the administration of Economics, Trade, and Global Issues programming within the U.S. Speaker and Specialist Program, Bureau of International Information Programs (IIP), Department Of State." The position description for Supervisory Program Officer indicated that this position manages and directs the administration of programming in his/her particular thematic area (Democracy and International Security, United States Society and Values, or Economics, Trade, and Global Issues) within the U.S. Speaker and Specialist Program of the IIP.
Complainant was among four candidates for the position who were rated as best qualified for the position by Human Resources1 and referred to the selecting official for a final selection decision. The selecting official (white male) was the Director, Worldwide Speakers & Specialists, IIP. The selecting official (SO) interviewed each of the best qualified candidates along with another management official (white male), the Senior Advisor for IIP. Following the interviews, a candidate (white male) other than Complainant was selected.
During the investigation, the SO explained that he chose the selectee because he had "more precise experience" than Complainant and "he was working the job already." The record shows that at the time of his selection, the selectee was serving in the position at issue in an acting capacity. Further the SO stated that he wanted someone who would "do the tasks and do [them] right away." The SO said that Complainant's experience, while good, was not as relevant as the selectee's experience. The SO noted that the selectee had been in the economic section for some time. In contrast, according to the SO, Complainant was working as a program officer for the regional area, not the subject area and that Complainant had not worked specifically in the economic section as much as the selectee had.2 The SO emphasized that, "that was mostly it, the experience and familiarity with the subject and the section." The SO concluded that while Complainant was qualified for the position and had been "very impressive in the interview," he judged the selectee to be better qualified.
The record contains the nineteen-paged application submitted by the selectee for the position at issue. In Question (4) of the application, the selectee provided an extensive response, detailing his experience for the Supervisory position. The selectee explained that for the past three years, he has served as the Program Officer and Acting Chief of what is now known as the Economics, Trade and Global Issues Division. He indicated that his daily work had centered on the design, development, administration and oversight of speaking programs, in the U.S. and abroad, that focus on major topics, issues, developments and institutions related to U.S. economic, trade, and more recently, global themes. He further explained that in order to successfully recruit the most appropriate speakers, and to most completely meet the objectives of the overseas post, he had been required to have a substantial knowledge of the above themes, and a firm understanding of the foreign policy objectives, policies, and initiatives of the IIP Bureau and the Department of State as a whole.
Further, while serving as Senior Program Officer in the Educational and Cultural Affairs (ECA) Bureau's Study of the U.S. Branch, the selectee indicated in his application that he designed and administered programs that brought key foreign audiences to the U.S. to specifically learn about U.S. society, culture, values and institutions (political, economic, etc) so that teaching and textbooks about the U.S. abroad would benefit. The selectee noted that the graduate-level academic institutes that he implemented required him to have a substantial knowledge of all of the subject areas, as he was responsible for analyzing proposals from the academic organizations applying for grants; making recommendations to the grant panels; selecting the most appropriate and qualified participants nominated by field posts; and working with grantee institutions to ensure that their programs provided participants with the deepest possible understanding of the U.S. He further noted that he has responded to reference requests in the U.S. Information Agency (USIA) Library to support public diplomacy activities of Agency field posts. At ECA, the selectee supported and developed books, publications and videos on aspects of U.S. society, culture and institutions for dissemination in foreign nations, including: "An African American Reader: Essays on African American History, Culture and Society," "The Twentieth Century American reader, Vol. II, "Currents in American Scholarship" and the "Essay Kit: About the U.S." in IIP. The selectee asserted that he contributed to the development of electronic journals on economics and trade themes. The selectee explained that as an employee of the USIA, and the Department of State since 1979, he has served in jobs that have given him experience in and knowledge about a wide range of public diplomacy programs, and the policies governing them, including: the Television and Film Service, the USIA Library, the International Visitor Program, the Fulbright Academic Exchange program, and the U.S. Speaker and Specialist Program.
The selectee noted that since 1992, as Senior Program Officer/Grants Coordinator/Acting Chief in ECA's Branch for the Study of the U.S., and as Acting Chief in IIP's Economics, Trade and Global Issues Division, his duties regularly included the assignment, review and supervision of the work of others. Additional work experience is highlighted in the selectee's lengthy application provided in the record.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found no discrimination. The Agency determined that, even if Complainant could establish a prima facie case, management had recited legitimate, nondiscriminatory reasons for Complainant's non-selection which Complainant failed to prove were a pretext for race discrimination.
The instant appeal followed. Complainant argues that he was more qualified for the position and should have been selected because of his stronger work and supervisory experience, his higher initial rating from Human Resources, and because his selection would improve IIP's diversity as there had never been an African American in the position in question. Complainant noted that the selectee had been with IIP the shortest period of time of all the candidates interviewed.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, 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").
To prevail in a disparate treatment claim such as this, 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 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). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). 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); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
On appeal, Complainant mainly conjectures and asserts that he is a victim of discrimination. Complainant specifically notes that:
My management and leadership experiences were more applicable towards the position of Supervisory Program Officer than the selectee's. According to the vacancy announcement, the Division supervisor manages and directs the administration of Economics, Trade, and Global Issues programming within the U.S. Speaker and Specialist Program, Bureau of International Information Programs, Department of State. It is true that the selectee was already a member of the team; however, the selectee served as a program officer and his management experience was primarily on a rotational basis in which I was also included. However, while I was a Regional Program Officer, my management experience came from a number of sources: the Executive Potential Program, Acting Division Chief for IIP/G/AF, teaching video journalism in Uganda and Ethiopia, serving as Deputy Public Affairs Officer at the American Embassy in Kampala, and serving as a Congressional Fellow in Congress. Also, I previously served as a Television Producer for the International Bureau of Broadcasting and the United States Information Agency for over 16 years. I led coverage of several economic and trade summits, three U.S. Presidential elections and won numerous awards for broadcasting including two international Bureau of Broadcasting program excellence awards, a Superior Directors' award for coverage of the Republic of China Crisis and a special commendation for outstanding coverage of the Regan-Gorbachev Summit. Furthermore, according to the AFGE Union Representative, I was rated by OPM the highest qualified of the candidates while the selectee was rated the least on their list.
While Complainant has demonstrated that he had an abundance of experience, especially as a Regional Program Officer, Complainant has not shown that the SO's conclusion that his work experience was less germane to the position in question than that of the selectee, who appeared to have more, direct experience in the desired subject area. Moreover, without more, the fact that Complainant has worked longer in IIP or that he was initially rated higher than the selectee by Human Resources does that prove, by a preponderance of the evidence, that the SO's explanations for the selection decision are a pretext for race discrimination.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
August 22, 2012
__________________
Date
1 The Agency concedes that Complainant had the highest rating of all the candidates by Human Resources when it created the best qualified list.
2 Complainant had also served in the position at issue in an acting capacity in the past on a rotating basis with other employees, including the selectee.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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