Carey S. Weathersby, Complainant,v.Dirk Kempthorne, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionAug 16, 2007
0120061627 (E.E.O.C. Aug. 16, 2007)

0120061627

08-16-2007

Carey S. Weathersby, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.


Carey S. Weathersby,

Complainant,

v.

Dirk Kempthorne,

Secretary,

Department of the Interior,

Agency.

Appeal No. 01200616271

Hearing No. 100-2004-00179X

Agency No. 0S-03-011

DECISION

Complainant filed an appeal with this Commission from the December 14,

2005 agency decision which implemented the September 30, 2005 decision

of the EEOC Administrative Judge (AJ) finding no discrimination.

Complainant alleged that the agency discriminated against him on the basis

of age (D.O.B. October 27, 1935) and reprisal for prior EEO activity when

on August 21, 2002, complainant was notified that he was not selected for

the position of Director, GS-15, Office for Educational and Community

Partnerships; and (2) he was denied documents and information through

the Freedom of Information Act (FOIA) concerning the selection for the

position above.

After the completion of the investigation of his complaint, complainant

requested a hearing. A hearing, continuing over the course of several

days, with six witnesses and complainant testifying, was held before

the AJ.

The record reveals that complainant applied for the position of Director,

Office for Educational and Community Partnerships under vacancy

announcement No. OS-02-57, was found qualified, and was interviewed

for the position. Five candidates were referred for selection and all

were interviewed by the selecting official. The selectee was about 40

years old during the relevant time period. The record reveals that the

selecting official was aware of both complainant's and the selectee's

prior EEO activity.

In his decision finding no discrimination, the AJ concluded that the

agency had articulated legitimate, nondiscriminatory reasons for not

selecting complainant and that complainant had failed to proved by a

preponderance of the evidence that the agency's articulated reasons were

pretext to hide unlawful discrimination. In so concluding, the AJ noted

the testimony of the selecting official in which the selecting official

stated that he did not choose complainant because he did not believe

that complainant was the best qualified to lead the office based on

the job duties listed for the applicable position description. The AJ

also noted that the selecting official testified that complainant was

very analytical and was obviously a bright individual who could solve

problems but that a lot of complainant's relevant work experience was not

recent and that the selecting official was looking for someone who could

manage and advance multiple projects. The AJ also noted the selecting

official's testimony that he was not looking for a technical expert.

The AJ noted that of the five candidates, the selecting official ranked

the selectee first and complainant fourth.

The AJ noted the selecting official's testimony that he had developed

three interview questions and asked the same questions of each candidate.

The AJ also noted the selecting official's testimony that when complainant

was asked to explain specifically what skills, experience and overall

qualifications he had that made him the best candidate, complainant's

answer was not responsive and complainant instead discussed problems

he had had in other situations and complaints he had filed based on

similar positions for which he had applied for in the past. The AJ

also noted that the selecting official testified that complainant

discussed his personal affairs, his early work in human resources,

his work with schools and youth, his teaching experience and relevant

technological skills. Concerning the interview, the AJ also noted that

when complainant was asked how would he proceed if he had been given an

assignment to assemble a workgroup plan, develop, and ultimately implement

a new department-wide program, complainant's response was very analytical

and described a fundamental process of putting a work group together and

outlined his response in a very methodical way. The AJ noted that the

selecting official did not remember the details of complainant's response

to the third question which was "[i]f complainant had an opportunity to

make changes that would improve the current organization, what changes he

would make and why." The selecting official did remember that complainant

answered the third question best, noting that his response was clear

and complainant was engaged.

In his decision, the AJ noted complainant's arguments that he had been

deemed qualified for the same position previously and it was canceled;

that the selectee had an unfair advantage in the selection process by

virtue of a temporary promotion and detail that he had obtained without

competition; that the vacancy announcement and position description

for the position was revised by the selectee which gave the selectee

an advantage in the selection process; and that the agency violated

its policies in order to illegally create the Office of Educational

and Community Partnerships but that the office was never officially

created.

The AJ noted that even if complainant were preselected and the

articulated reasons for the nonselection were disbelieved, the trier

of fact could, but was not required to, find discrimination. The AJ

further noted that for the employee to prevail, the trier of fact had

to be persuaded that intentional discrimination occurred. The AJ also

concluded that complainant had failed to rebut the agency's explanations

for its actions.

Regarding reprisal, the AJ concluded that although the selecting official

was aware of complainant's prior EEO activity, that this awareness was

not linked to his nonselection of complainant and he found credible

the selecting official's testimony that it was complainant, and not the

selecting official, who initiated a discussion of EEO activity during

the interview for the position.

On appeal, complainant contends, among other arguments, that the AJ

failed to consider the prejudicial impact that the agency's denial of

job interview notes had on the outcome of his complaint.

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, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

Upon review, the Commission finds that the AJ's decision is based upon

substantial evidence and that the AJ properly summarized the relevant

facts and referenced the appropriate regulations, policies and laws.

Complainant has failed to show by a preponderance of the evidence that

the agency's reasons for not selecting him were mere pretext to mask

unlawful discrimination and, further, that the agency's action in not

selecting him was motivated by discriminatory animus and retaliation.

As an initial matter, the Commission finds that the agency properly

dismissed claim 2 of the complaint on the grounds that it fails to state

a claim. The Commission does not have jurisdiction over the processing

of FOIA requests. Individuals having a dispute regarding FOIA requests

should bring their appeals about the processing of such requests under

the appropriate FOIA regulations. Gaines v. Department of the Navy,

EEOC Request No. 05970386 (June 13, 1997).

In the instant case because the agency has articulated a legitimate,

nondiscriminatory reason for complainant's nonselection and its

selection of the selectee, the prima facie inquiry is dispensed with.

The AJ properly concluded that the agency had articulated legitimate,

nondiscriminatory reasons for its action and that complainant failed to

show by a preponderance of the evidence that the agency's real reasons

were pretextual and motivated by discriminatory animus.

In nonselection cases, pretext may be found where a complainant's

qualifications are demonstrably superior to the selectee's qualifications.

It is undisputed that complainant was qualified for the position.

However, complainant has not shown, despite impressive qualifications and

his extensive experience, that his qualifications were plainly superior

to those of the selectee. Wasser v. Department of Labor, EEOC Request

No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048

(10th Cir. 1981).

Regarding complainant's contention that the selectee was preselected,

the Commission notes that preselection, per se, does not establish

discrimination when it is based on the qualifications of the selected

individual and not on some basis prohibited by the discrimination

statutes. McAllister v. United States Postal Service, EEOC Request

No. 05931038 (July 28, 1994). The Commission and federal courts have

determined that preselection is not unlawful if it is based on the

qualifications of the selectee and not on a discriminatory motive.

Nickens v. National Aeronautics and Space Administration, EEOC Request

No. 05950329 (February 23, 1996); Goostree v. State of Tennessee, 796

F.2d 854, 861 (6th Cir. 1986). In addition, even were we to assume that

the selectee was indeed preselected as complainant alleges, the record

establishes that the selectee had relevant experience and skills for

the position and was qualified for the position.

We reject complainant's assertion that the agency used wholly subjective

criteria in making its selection. The Commission has recognized that the

use of subjective criteria may offer a convenient pretext for unlawful

discrimination. See Wilson v. United States Postal Service, EEOC Request

No. 05921062 (August 12, 1993). On the other hand, subjective criteria

are frequently relied upon in promotions to supervisory or management

positions and the use of such criteria is not, in and of itself, an

indicator of discriminatory motivation. Fodale v.Department of Health and

Human Services, EEOC Request No. 05960344 (October 16, 1998). Even were

we to assume that the agency did use subjective criteria, the Commission

has held that an employer has more discretion in selecting management

level employees because the qualities needed to successfully perform in

such positions are not easily quantifiable. See White v. Department of

Interior, EEOC Request No. 05930686 (September 1, 1994).

To the extent that complainant may be alleging that the agency failed

to follow its own procedures in the selection process, this condition

alone is not sufficient to support an inference of pretext. Regarding

complainant's assertion that complainant falsified his application, the

record shows that complainant referred to himself on his resume as the

Acting Director when he did not officially hold the title. The record

establishes, however, that there were no inaccuracies regarding the

actual duties that the selectee was performing and that complainant had

served in the position on a detail. Moreover, the selecting official

was aware of complainant's correct title and his duties and he testified

that he brought complainant's attention to the inaccuracy. Also, the

selecting official had talked with the Human Resources office regarding

an accretion of duties for the selectee because the selecting official

had had the selectee performing additional duties and had had him "pick

up the slack."

Regarding the destruction of interview notes, the Commission notes that

pursuant to EEOC Regulation 29 C.F.R. � 1602.14, agencies have a duty to

preserve records pertaining to appointments, selections and demotions.

Moreover, the regulation requires that once the complaint process is

initiated, the agency is required to retain personnel records until a

final disposition of the complaint. The Commission also notes that the

AJ could have acted within his discretion to draw an adverse inference

against the agency. See 29 C.F.R. � 1614.108(c)(3)(i); Hale v. Department

of Justice, EEOC Appeal No. 01A03341. The appropriate adverse inference

that the AJ could have drawn was that the missing information would have

reflected unfavorably on the agency. Even if this adverse inference

were drawn in the instant case, however, the evidence of record does

not establish that complainant would have been chosen over the selectee

for the position. We do not find that the notes were determinative

because complainant has not demonstrated that the notes would show that

complainant would have been selected for the position based solely on

interview notes. Further, in this case, we do not find that the notes

were destroyed in bad faith. Moreover, the agency has set forth, with

sufficient clarity, reasons for complainant's nonselection and complainant

has been afforded a full and fair opportunity to demonstrate that those

reasons were pretextual.

Accordingly, the agency's decision finding no discrimination is AFFIRMED.

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

August 16, 2007

__________________

Date

1 Due to a new data system, this appeal has been re-designated with the

above-referenced appeal number.

??

??

??

??

2

0120061627

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036