0120102308
08-10-2012
Brian P. Hughes, Complainant, v. Jeffery N. Trimble, Executive Director, Broadcasting Board of Governors, Agency.
Brian P. Hughes,
Complainant,
v.
Jeffery N. Trimble,
Executive Director,
Broadcasting Board of Governors,
Agency.
Appeal No. 0120102308
Hearing No. 570-2009-00745X
Agency No. OCR-08-31
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 19, 2010 final order 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency's Voice of America in the International Broadcasting Bureau in Washington, D.C. Complainant applied for a TV Broadcast Technician position and was rated as one of the best-qualified candidates on the Certificate of Eligibles. A second, non-competitive certificate was generated with three status candidates who were eligible for non-competitive placement. The selecting official (SO) initially selected Selectee 1, a five-point veteran who was the top-rated candidate on the best-qualified certificate and Selectee 2 from the non-competitive certificate. One additional position needed to be filled under the vacancy announcement and a two-person panel interviewed all remaining candidates from the Certificate of Eligibles. Each candidate was asked the same questions by the panel and rated based on their responses. At the conclusion of the interviews, the panelists agreed that Selectee 3 stood out as the best candidate. The selecting official (SO) forwarded Selectee 3's selection to her supervisor who approved.
On September 30, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and color (White) when on July 5, 2008, he was not selected for the position of TV Broadcast Technician under Vacancy Announcement No. DEU-08-31.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On April 7, 2010, the AJ granted the Agency's unopposed motion and issued a decision without a hearing.
In his decision, the AJ assumed arguendo that Complainant had established a prima facie case of discrimination and found that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was found to be qualified, interviewed by the panel, but was not identified as the best qualified candidate. 2 Selectee 3 achieved the highest possible scores in his interview and thoroughly responded to all of the interview questions while Complainant did not sufficiently demonstrate his qualifications to the interview panel. Thus, the Agency selected Selectee 3 for the position.
In attempting to establish that the Agency's reasons were pretextual, Complainant contended that he was the better qualified candidate because he previously trained Selectee 3 and was his supervisor for three years. The AJ determined, however, that the undisputed facts demonstrated that Complainant's qualifications were not plainly superior to Selectee 3's. The AJ concluded that Complainant had presented no evidence that the Agency's reasons were pretextual. As a result, the AJ found that Complainant had not been discriminated against as alleged. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he was more qualified and had more experience than the Selectee 3. Further, Complainant alleges that Selectee 3 plagiarized and falsified sections of his resume and application. Accordingly, Complainant requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The Commission concludes even assuming all facts in his favor, a reasonable fact finder could not find in his favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
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 she 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, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 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. 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Hotley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the Commission agrees with the AJ that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, SO affirmed that Complainant was not selected because his answers to the technical questions during his interview were not as strong as other candidates'. ROI, at 49. She added that Complainant's answers were complete, but not as clear and thorough as they could have been concerning the equipment. Id. Conversely, SO stated that Selectee 3's responses were very descriptive about his experience with digital and automation equipment and programs. Id. at 50. Further, Selectee 3 identified several pieces of equipment that the Agency was installing in its new TV Master Control/Videotape area and SO stated that they thought it would be extremely helpful to have someone with his experience on their team. Id. As a result, the panel selected Selectee 3 and the Operations Director approved their selection.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish pretext is by showing that his qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainant contends that he was better qualified for the position as he had trained Selectee 3 when they previously worked together and he had more years of experience than Selectee 3. The Commission notes that number of years of experience, alone, is insufficient to establish that someone's qualifications are observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). A review of the considered candidates' applications does not reveal that Complainant's qualifications for the positions were plainly superior to those of the selectee. The Commission notes that an employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259.
Here, the weight of the evidence reveals that the selecting official chose Selectee 3 because she believed that he was better qualified and would be better equipped to meet the Agency's needs. Complainant failed to rebut the Agency's reasons with any evidence that would undermine the Agency's explanation. Thus, the Commission finds no evidence in the record which would support a finding that the selection was tainted by discriminatory animus or that the reasons articulated by the Agency for its selection were mere pretext to hide unlawful discrimination. Accordingly, the Commission finds that Complainant has failed to show that he was discriminated against as alleged.
CONCLUSION
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 order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence 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 (Nov. 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 10, 2012
Date
1 The Administrative Judge's decision inadvertently omitted the basis of color (White) in its description of the issue presented in this case.
2 In his formal complaint, Complainant only challenges the competitive selection of Selectee 3.
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0120102308
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102308