01a05020perkins
03-09-2001
Dana N. Perkins, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Dana N. Perkins v. Department of the Treasury
01A05020
March 9, 2001
.
Dana N. Perkins,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A05020
Agency No. TD 99-3053
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD), concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against based on age (over 40), when he did not make the Best Qualified
List (BQL), and thus was not selected for the position of Revenue Officer
(Settlement Officer), GS-1169-13.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Chief, GS-1101-12, in the Special Procedures Branch,
Insolvency Department, Pennsylvania District of the agency's Internal
Revenue Service at the agency's Pittsburgh, Pennsylvania, facility.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on November 27, 1998.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
Complainant was rated as Highly Qualified but did not make the BQL.
Therefore, he was not referred to the Selecting Officer (SO) for
final consideration. Before any applicant was referred to the SO,
a ranking official (RO) ranked each of the applicants.<1> The RO,
Associate Chief of Appeals, Philadelphia, Pennsylvania, Service Center,
ranked each applicant based on three criteria: (1) the applicant's
performance appraisal which was prepared by the applicant's supervisor;
(2) the applicant's potential to succeed in the new position as determined
by the RO; and (3) any qualifying awards listed on the applications.
There was confusion regarding the conversion of complainant's scores for
his performance appraisal from a Form 9739 to a Form 6850 and whether
the scores were properly tallied. On the Form 9739, complainant had
received ratings of �Exceeded� for critical element 1 (Increasing
Voluntary Compliance), �Met� for critical element 2 (Maximize Customer
Satisfaction), and �Exceeded� for critical element 3 (Achieve Quality
Driven Productivity) on his performance appraisal. The RO converted
complainant's ratings in these critical elements on the Form 6850 into
numerical scores of 5, 4, and 5 respectively.<2> The RO then contacted
the Personnel Staffing Specialist (PSS) to confirm whether his conversions
were correct. The PSS indicated that the score of 4 for critical element
2 was incorrect and should be lowered to a 3. The RO did not lower
complainant's score. Complainant's score was ultimately lowered by the
PSS after all the application packages had been returned to the personnel
office for the PSS's review. The PSS also corrected the overall score
the RO gave complainant from a 47.02 to a 44.98. Thus, complainant did
not make the BQL cut-off of 46.00. Of ten candidates, four made the BQL.
The Selectee (under 40), a Revenue Officer, Offer in Compromise Examining
Specialist, GS-1169-12, ranked third. Complainant ranked fifth.
The Selecting Official (SO), Chief of Appeals for the Pennsylvania
District, Philadelphia, Pennsylvania, was out of the office throughout
the ranking and selection process for personal reasons. The Associate
Chief of Appeals for the Pennsylvania District, Philadelphia, acted for
the SO, and was the Acting Selecting Official (ASO) during the selection
process and signed the promotion certificate on the SO's behalf. However,
the SO was in telephone contact with the RO and the ASO, and solicited
their recommendations. Both recommended the Selectee. The SO also
solicited the recommendation of the Associate Chief, Pittsburgh Office,
the supervisor of the Settlement Officer position. The Associate Chief,
Pittsburgh Office, recommended the Selectee,
after advising the SO that he was in a car pool with the Selectee.
Complainant was also in the car pool.
Complainant argued that his final rating by the RO was incorrect, and
that he should have been on the BQL. Complainant argued that he was not
selected for the Settlement Officer Position because the Associate Chief,
Pittsburgh Office, favored younger employees. Complainant alleged that
the Associate Chief, Pittsburgh Office, made several discriminatory
comments referencing age. Additionally, complainant argued that the
Selectee was preselected.
The FAD assumed that complainant made a prima facie case. However, in
articulating a legitimate, nondiscriminatory reason for its action, the
agency indicated that the SO, ASO, and the RO all agreed that the Selectee
was the best candidate for the position, emphasizing the attractiveness
of a person with �offer examiner� experience, such as the Selectee.
The FAD thus found that the Selectee was the only candidate on the
BQL whose work was directly related to the duties of the position at
issue. The agency discounted the evidence of age related remarks and
discriminatory motives attributed to Supervisor A, because they were
not directed at any individual responsible for rating or ranking the
complainant, and those individuals were unaware of complainant's age.
The FAD found that complainant did not show why he was incorrectly
rated too low, and even assuming that a mistake was made, failed to
prove that the error occurred as a result of a discriminatory motive.
Finally, the agency indicated that complainant could not demonstrate
that his qualifications were plainly superior to those of the Selectee.
Therefore, the FAD concluded that complainant failed to show pretext.
On appeal, complainant contests many of the agency's factual
determinations, such as the identification of the officials involved in
the selection process, discussed supra. Complainant especially argues
that his ranking was erroneous due to the improper lowering of one of
his performance ratings from 4 to 3, and that had the 4 rating remained
unchanged he would have made the BQL. He further indicates that other
candidates with initial ratings from 4 were unchanged. Complainant also
argues that the RO and ASO knew his age because the Supervisor introduced
him to them at a meeting. Additionally, complainant suggests �old
fashioned cronyism� as an alternative explanation. Complainant's Brief
at 3. Finally, complainant argues that other applicants, including
himself, have had significant experience working offers.
In reply, the agency argues that complainant failed to establish a
prima facie case, since he did not make the BQL list. The agency
further points out that Supervisor A was not the RO or SO, but was
merely asked by the SO for a recommendation. The agency reiterates the
FAD's emphasis that complainant introduced no evidence to show that any
official responsible for rating or ranking the complainant was aware of
Supervisor A's allegedly discriminatory remarks. The agency further
took the position that favoritism, without discriminatory intent, is
not unlawful. Additionally, the agency argues that its articulated
reason for choosing the Selectee, i.e., that the Selectee was the only
individual with current hands-on experience with offer-in-compromise work,
has not been challenged. Finally, the agency argues that complainant
cannot establish that his qualifications for the Settlement Position
were observably superior to those of the Selectee. The agency requests
that we affirm its FAD.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). See also Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979) (requiring a showing that age was a determinative
factor, in the sense that "but for" age, complainant would not have
been subject to the adverse action at issue). A complainant must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited reason was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
Complainant may establish a prima facie case of discrimination in the
nonselection context by showing that: (1) he is a member of a protected
class; (2) he was qualified for the position; (3) he was not selected
for the position; and (4) he was accorded treatment different from that
given to persons otherwise similarly situated who are not members of
his protected group or, in the case of age, who are considerably younger
than he. Williams v. Department of Education, EEOC Request No. 05970561
(August 6, 1998); Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996). Complainant
may also set forth evidence of acts from which, if otherwise unexplained,
an inference of discrimination can be drawn. Furnco, 438 U.S. at 576.
The established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Even assuming arguendo that complainant has established a prima facie
case, the agency has articulated a legitimate, nondiscriminatory reason
for its failure to promote and select complainant for a GS-13 position,
i.e., that complainant's score was not sufficiently high to justify
promotion. The Commission notes that in nonselection cases, pretext
may be found where the complainant's qualifications are demonstrably
superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). However, an employer has the discretion to choose among
equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981). Additionally, an employer has greater discretion
when filling management level or specialized positions. Wrenn v. Gould,
808 F.2d 493, 502 (6th Cir. 1987).
Complainant has not shown pretext. While the complainant's score was
lowered, it does not appear that he was particularly singled out,
because two other candidates' Form 6850 scores were lowered as well.
One candidate's Form 6850 score was raised. Nevertheless, the critical
question is not so much whether the score was lowered, but whether it
was erroneously lowered for discriminatory purposes.
Complainant has not shown that the score was erroneously lowered.
Complainant argues that his Attachment F supports his position that
his fully successful rating warranted a 4 rating and not a 3 rating.
We have reviewed complainant's attachments and find nothing to support
such a conclusion, except for some handwriting, which is entitled to
no probative value, because there is no identity as to the author.
Even that handwriting suggests that either a 3 or 4 rating would be
proper. However, the last page of complainant's attachments indicate
that a fully successful rating warrants a 3 rating, while an exceeds fully
successful warrants a 4 rating. Such confusion, caused by complainant,
is not helpful in showing pretext by the agency. In any event, there
is no showing that Supervisor A was involved in any way in the rating
process for purposes of the BQL list.
Additionally, it is not enough for complainant to show that the agency
made factual errors, but rather complainant must show that the errors were
material, i.e., having the potential to affect the outcome of the case.
Furthermore, just because complainant met an involved agency official
does not necessarily mean that the official knew he was over 40 years
of age, when considering his application.
With respect to the Selectee's experience, the agency emphasizes, that it
was the Selectee's current hands-on experience with offer-in-compromise
work and the fact that the Selectee was the only current Offer Examiner
on the BQL, that were significant. Indeed, the agency emphasizes that the
Selectee was the only candidate who had ever worked as an Offer Examiner.
Complainant did not delineate the currentness of the other candidates'
experience with offer-in-compromise work or suggest that any other
candidate had experience as an Offer Examiner.
Finally, to the extent complainant suggests that the Selectee was in
the same carpool as the Associate Chief, Pittsburgh office, giving rise
to favoritism due to friendship, complainant was in the same carpool,
but was ineligible for selection, since he did not make the BQL list.
In any event, the Commission can not second guess an employer's
business decisions but can focus only on an employer's motivation for
such decisions. Burdine, 450 U.S. at 259. The Commission notes that,
even if cronyism is the true reason behind the selection of the Selectee,
absent other indicia of discrimination, cronyism is not a violation of
Title VII. See Perry v. United States Postal Service, EEOC Request
No. 05870581 (March 29, 1988). While cronyism may seem unfair and
reflect poor business judgment, the focus in finding discrimination under
Title VII is on the employer's motive, not business judgment. See Loeb
v. Textron, Inc., 600 F.2d 1003 n.6 (1st Cir. 1979). Accordingly,
Title VII does not prohibit an employer from selecting an employee
based on nondiscriminatory factors, however subjective and unsound.
See generally Haskell v. Karman Corp., 743 F.2d 113, 119 (2nd Cir. 1984).
There has been no other showing of animus against complainant or any
other person on the basis of age by the agency at complainant's location.
Even if the agency's method of selecting the Selectee was influenced by
cronyism, nevertheless complainant has presented insufficient evidence to
establish that discrimination was a discernable or determinative motive
in the selection process. See also Hawkins v. McPherson, 42 FEP Cases
699, 703 (D.D.C. 1986) (employment decisions based upon friendship and
favoritism are not in violation of Title VII, so long as they are not
also premised on some basis which is unlawful under Title VII).
The Commission finds that complainant failed to present evidence that,
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 9, 2001
Date
1 There was confusion in the FAD about some of the agency's officials
involvement in the selection process, which was pointed out by
complainant on appeal and was either confirmed or undisputed by the
agency in its response. The appropriate corrections have been made in
the recitation of the facts below.
2 As an applicant for a bargaining unit position, complainant's most
recent performance appraisal had to be converted to their numerical
equivalent on the Form 6850 for the purpose of ranking the candidates.