0120110038
01-25-2011
Amon Oscar, Complainant, v. Jeffery N. Trimble, Executive Director, Broadcasting Board of Governors, Agency.
Amon Oscar,
Complainant,
v.
Jeffery N. Trimble,
Executive Director,
Broadcasting Board of Governors,
Agency.
Appeal No. 0120110038
Agency No. OCR0918
DECISION
On September 23, 2010, Complainant filed an appeal from the Agency's August 16, 2010 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a contractor at the Agency's Swahili Service, Voice of America facility in Washington, D.C.
On August 6, 2009, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of sex (male) and religion (Christian) when:
On June 2, 2009, the Agency did not select Complainant for the position of International Broadcaster (Radio) (Swahili).
At the time he was not selected, Complainant was working with the Agency as a contractor. In his formal complaint, Complainant contended he possessed qualifications superior to those of the two selectees.
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency found no discrimination. The Agency found that Complainant was unable to establish a prima facie claim of discrimination because one selectee was the same sex as Complainant and the other selectee practiced the same religion as Complainant. The Agency also accepted the selecting official's (SO) explanations for selection as legitimate and nondiscriminatory. Specifically, SO stated that he found the two individuals selected (selectees) to be the most qualified because they had the most broadcasting experience. The Agency found Complainant did not establish that SO's reasons were mere pretext for discriminatory animus.
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 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").
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). She 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case with respect to Complainant's claims, however, because the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Here, the relevant job announcement stated as the sole qualification "1 year of specialized experience equivalent to the lower grade level." The announcement also stated that the candidate must possess experience translating between English and Swahili, be experienced in broadcasting in Swahili, and have comprehensive knowledge of the target demographics.
SO articulated legitimate and nondiscriminatory reasons for choosing the selectees. SO stated that both selectees possessed extensive experience in broadcasting, along with knowledge of international broadcasting principles and methods. SO cited one selectee's experiences working as a journalist in Tanzania and as a contractor with the Agency. The other selectee had extensive experience broadcasting in Tanzania and with the BBC in London, broadcasting in Swahili. SO believed this selectee to be "an all around on-air talent sought by many stations."
Complainant argues that his qualifications were superior to the selectee. In a non-selection case, pretext may be shown by a showing that Complainant's qualifications are observably superior to those of the selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant asserts that he has nine years of higher education, earning a bachelor's degree in journalism and a master's degree in communication. Complainant argues his educational background makes him a demonstrably superior candidate than the selectees. However, Complainant does not demonstrate that his experience in broadcasting was observably superior to that of the selectees.
After a comprehensive review of the record, we find Complainant has not established, by a preponderance of the evidence, that SO's proffered reasons are pretext for unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision finding no discrimination.
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
January 25, 2011
__________________
Date
2
0120110038
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110038