01965683
02-23-1999
Ernest D. Worsham, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Ernest D. Worsham v. Department of Housing and Urban Development
01965683
February 23, 1999
Ernest D. Worsham, )
Appellant, )
) Appeal No. 01965683
v. ) Agency No. FW-91-30
) EEOC No. 310-92-5391X
Andrew M. Cuomo, )
Secretary, )
Department of Housing )
and Urban Development, )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts
this appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal complaint of discrimination in which he
claimed discrimination on the bases of race (African-American) and
sex (male), when he was not selected for the position of Supervisory
Realty Specialist, (Chief, Property Disposition Branch), GM-1160-13,
under vacancy announcement No. 06-MSO-91-0004. The agency accepted
the complaint and conducted an investigation. At the conclusion of the
investigation, appellant requested a hearing before an Equal Employment
Opportunity Commission administrative judge (AJ). A hearing was conducted
on March 12, 1993.
On March 31, 1993, the AJ issued a recommended decision (RD) finding no
discrimination. The AJ concluded that although appellant had established
a prima facie case of disparate treatment, the agency had articulated
a legitimate, nondiscriminatory reason for its action. The Selecting
Official (SO) testified that he was looking for four things in a selectee:
(1) a supervisor who was credible and stressed equality among his
employees; (2) a manager who was assertive in management philosophy; (3)
a manager who actively supported the Secretary's number one priority, the
resident initiatives program; and (4) a person who displayed leadership
skills, and who could deal with people problems in a positive way.
Specifically, agency witnesses testified that in terms of qualifications,
appellant and the selectee (White female), were about equal. However,
in terms of managing employees, the SO found that the selectee was
more flexible, and appellant's style was rigid and authoritarian.
Furthermore, the SO testified that appellant was not as enthusiastic
about the resident initiative program, while the selectee showed more
enthusiasm for the program. The AJ also noted that the agency had
alleged that women were under represented in grades GS-13 and above.
In discussing pretext, the AJ noted that appellant believed the selectee
was preselected for the position because she had been placed into the
position in an acting role prior to the selection. However, the AJ
found that given the fact that appellant and the selectee were equal or
near equal in qualifications, the agency's use of subjective criteria
in its selection was not pretext for discrimination. In conclusion,
the AJ found that appellant had failed to show that the agency's
legitimate, nondiscriminatory reason for its selection was a pretext
for discrimination.
On June 4, 1993, the agency issued a final decision adopting the AJ's
finding of no discrimination. On June 30, 1993, appellant filed
an appeal to the Office of Federal Operations (OFO). See Worsham
v. Dept. of Housing and Urban Development, EEOC Appeal No. 01933564
(June 17, 1994). In that decision, the Commission noted that, despite
repeated requests, the agency had failed to provide the Commission with
a copy of the hearing transcript. Therefore, the Commission decided to
draw an adverse inference regarding the testimony of the parties where
credibility was in issue. In that decision, the Commission affirmed
the agency's final decision of no discrimination.
On July 20, 1994, appellant initiated a request to the Commission to
reconsider the Worsham decision. See Worsham v. Dept. of Housing and
Urban Development, EEOC Request No. 05940818 (March 7, 1996). In his
request, appellant argued that the agency failed to supply a copy of the
hearing transcript in an effort to conceal the SO's hearing testimony
wherein he admitted that the under representation of white women at the
GS-13 level played a part in his decision. In light of this allegation,
the Commission decided to reconsider the previous decision on its own
motion. See id. Therein, the Commission found that in light of the
agency's failure to provide an explanation for the missing transcript,
as well as appellant's allegations that the SO testified that he had
taken the under representation into consideration, the Commission found
that there may be evidence that the agency's articulated reason for
its nonselection was pretext for discrimination. Therefore, the final
decision was vacated and the agency was ordered to conduct a supplemental
investigation. As part of its investigation, the agency was ordered to
obtain the transcript, or, if it could not, it was to provide an affidavit
from the SO addressing appellant's contention that he testified on cross
examination as to his desire to correct the under representation of white
women at the GS-13 level. The agency was further ordered to provide an
affidavit explaining the reasons it failed to provide the Commission and
appellant with a copy of the hearing transcript. Finally, the agency
was ordered to issue a new final decision addressing the findings of
the supplemental investigation.
On May 31, 1996, the agency issued a second final agency decision
adopting the AJ's finding of no discrimination. In addition, it added
that with respect to the consideration given to the Affirmative Action
Plan, the agency found that it is permissible to consider such factors
when they are used to effectuate the purposes of Title VII. Furthermore,
it stated that the mere fact that the selection assisted the agency in
fulfilling its affirmative action goals, is not indicative of whether
it was the reason for its selection. See Maley v. Department of Health
and Human Services, 01842676 (1986).
It is from this final agency decision that appellant now appeals. In the
instant appeal, appellant argues that the agency admitted that race and
sex were motivating reasons behind the selection, and that subjective
factors were used as further basis for the decision.
After a careful review of the record in its entirety, including
the hearing transcript which was ultimately sent to the Commission,
the Commission finds that the AJ's recommended decision sets forth
the relevant facts and properly analyzes the appropriate regulations,
policies and laws. The Commission has reviewed the parties' statements
on appeal and discerns no basis in which to disturb the AJ's finding
of no discrimination. We note that the record shows that appellant
and the selectee were both well qualified for the position, and the SO
testified that the decision was a difficult one. However, the record
also demonstrates that the bases for the selection included enthusiasm
for the resident initiative program, managerial style, and the ability
to deal with people problems involved when directing and coordinating
the work of a subordinate staff. While appellant may argue that
the agency's action was, to a certain degree, premised on subjective
criteria, we note that with respect to promotions to managerial level,
professional and specialized positions, the use of subjective criteria
is generally acceptable. Camillas v. U.S. Navy, 735 F.2d 338, 345
(9th Cir. 1984); Page v. U.S. Industries, 726 F.2d 1038 1053 (5th
Cir. 1984). Court and Commission precedent have consistently held that
where there are two equally desirable candidates competing for the same
position, the selecting official may exercise his/her prerogative in
choosing between the candidates and, absent discrimination, a trier
of fact should not substitute his judgment for the legitimate exercise
of managerial discretion. Bennett v. U.S. Postal Service, EEOC Appeal
No. 01893757 (April 20, 1990); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). Moreover, appellant has produced insufficient evidence,
either testimonial or documentary, to support the finding that his
qualifications for the position were so plainly superior to those of
the selectees as to warrant a finding of pretext.
The Commission finds insufficient evidence of discrimination in the
agency's acknowledgment that the decision to chose the selectee had the
additional benefit of being supportive of the its affirmative action
goals. The SO was able to articulate and support the other reasons for
his selection. Specifically, the selectee was more supportive of the
resident initiatives program and had a management style preferable to
that of appellant. The preponderance of the evidence does not support
appellant's contention that the agency's consideration of its affirmative
action goals played a deciding role in the selection. Indeed, the SO
specifically testified that such considerations were not the deciding
factors in his decision to chose the selectee. Accordingly, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
February 23, 1999
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations