Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.

Equal Employment Opportunity Commission

Feb 21, 2013

0120114131 (E.E.O.C. Feb. 21, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Timothy F. Geithner,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.

Appeal No. 0120114131

Hearing No. 450-2010-0003X

Agency No. BEP-07-0694-F

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s August 4, 2011 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. For the following reasons, the
Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an
Exchanger/Examiner at the Agency’s Western Currency facility in Fort Worth, Texas. The
COPE Section Manager (M1) received approval to hire an additional Assistant Supervisor.
The position was a one-year appointment. Complainant and five other employees were serving
as Acting Assistant Supervisors, and each was eligible to become permanent supervisors. To
make the selection, M1 provided the permanent supervisors surveys with 11 questions rating
the candidates’ performance in the Acting Assistant Supervisor role. Complainant was one of
the three top-ranked candidates. M1 discussed the three candidates with two subject matter
expert permanent supervisors and his predecessor and used his own personal knowledge of the
candidates. As a result, M1 selected the selectee who was a Controller in the Star Note Vault
for the one-year appointment. The position subsequently became permanent in 2007.

On July 14, 2007, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the basis of race (African-American) when he was not selected for the position
of Assistant Support Supervisor. At the conclusion of the investigation, the Agency provided
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Complainant with a copy of the report of investigation (ROI) and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ1). Complainant timely requested a
hearing. Over Complainant's objections, AJ1 granted the Agency’s motion for summary
judgment and issued a decision finding no discrimination. The Agency issued a final order
adopting AJ1’s decision. Complainant appealed and, in v. Dep’t of Treasury,
EEOC Appeal No. 0120091224 (May 14, 2009), the Commission vacated the final order and
remanded the complaint for a hearing. The AJ assigned to the case (AJ2) held a hearing and
issued a decision.

In her decision, AJ2 determined that Complainant had established a prima facie case of
discrimination and that the Agency had articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, M1 affirmed that he selected the selectee because she had done an
excellent job while acting in the position, was very reliable, and had the skills and knowledge
to supervise both the production floor and the Star Note Vault. M1 stated that all of the Acting
Assistant Support Supervisors were considered and rated by management and the selectee
received the highest overall rating.

Complainant challenged the lack of “validation” of the surveys. Further, Complainant argued
that the survey form was badly designed and allowed too much subjectivity. Additionally, a
significant portion of the hearing focused on mistakes made by M1 in compiling the summary
matrix. AJ2 determined that even after all the corrections were made, Complainant still
ranked second to the selectee. Further, the surveys were only part of the process. M1
believed that the selectee’s Star Note Vault experience gave her an edge.

AJ2 concluded that Complainant had presented no evidence that the Agency’s reasons for its
actions were pretextual. As a result, AJ2 found that Complainant had not been discriminated
against as alleged. The Agency subsequently issued a final order adopting AJ2’s decision.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency gave contradictory reasons for its selection.
In addition, Complainant challenges the Agency’s use of the survey and the origin of the
questions therein. Finally, Complainant argues that the Agency attempted to keep the selection
secret. Accordingly, Complainant requests that the Commission reverse the final order.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 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.
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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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-pan
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. Corp. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, because 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. 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, 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); Holley 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).

The Commission finds that the AJ's determination that the Agency articulated legitimate,
nondiscriminatory reasons for its actions is supported by substantial record evidence.
Specifically, M1 testified that he received permission to fill the temporary promotion and
decided to fill the position with one of the six acting supervisors. Hr’g Tr., Vol. 2, at 303-04.
M1 developed a survey with two subject matter experts for the permanent supervisors to
answer questions regarding the acting supervisors. Id. at 306. After the surveys were
completed, M1 met again with the subject matter experts and discussed the ratings. Id. at 311-
12. After compiling the survey scores, Complainant was one of the top three candidates.
Ultimately, M1 chose the selectee because she was the highest rated candidate by the
permanent supervisors and based on her extensive Star Note Vault experience. Id. at 324.
Additionally, M1 considered some negative feedback he had received about Complainant as an
Acting Supervisor. Id. at 328.

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.
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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).
This is simply one method and is not the only way Complainant may establish pretext as to his
non-selection claim.

The Commission finds that the AJ's determination that Complainant failed to establish pretext
as to his non-selection is supported by substantial evidence in the record. A review of the
record does not reveal that Complainant's qualifications for the position were plainly superior
to those of the selectee. While Complainant contended that he was the more qualified
candidate based on his years of experience, 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).
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. The
record establishes that M1 chose the selectee because he believed that the selectee was better
qualified and would be better equipped to meet the Agency’s needs. The record and facts
gleaned at the hearing fail to prove any evidence purporting to show that the selection process
or the Agency’s selection decision was tainted by discriminatory animus or that the reasons
articulated by the Agency for its selection were mere pretext to hide unlawful discrimination.
As a result, the Commission finds that Complainant was not 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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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.
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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
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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

February 21, 2013
Date