01A30877_r
05-20-2003
Glen A. Shield, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Glen A. Shield v. Department of the Treasury
01A30877
May 20, 2003
.
Glen A. Shield,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A30877
Agency No. 02-2086
Hearing No. 360-A2-8658X
DECISION
Complainant filed an EEO complaint in which he claimed that the agency
discriminated against him on the bases of his race (Caucasian), national
origin (non-Hispanic), and sex (male), when on November 7, 2001, he was
not selected for the position of Computer Specialist, GS-0344-11.
The record reveals that complainant is employed by the agency as a
Functional Coordinator, GS 301-9. Complainant applied for and was
not selected for any of four Computer Specialist, GS-11 positions that
were filled. Three of the selectees are Hispanic and the fourth has a
Hispanic surname. Two of the selectees are female.
The EEO complaint was accepted for investigation. Subsequent to the
completion of the agency investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). A hearing was held and on
September 30, 2002, the AJ issued a decision wherein she found that no
discrimination occurred. The agency issued a final order dated October
21, 2002, wherein it fully implemented the AJ's decision.
On appeal, complainant contends that the selecting official did not
sufficiently consider education in making her selections. Complainant
argues that the applicants should have been interviewed. Complainant
challenges the selecting official's testimony that the number of years
of experience for each applicant in the Functional Coordinator position
was immaterial. In support of his argument, complainant notes that the
selecting official testified that the critical skill of troubleshooting is
best learned through experience. Complainant argues that the selecting
official was unable to articulate the requirements for the position and
demonstrated ignorance concerning her employees' duties.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
For complainant to prevail, he 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 consideration 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). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of race, national origin, and sex
discrimination. Next, we shall consider whether the agency articulated
a legitimate, nondiscriminatory reason for its action. In this case,
the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its action. Consequently, we will dispense
with an examination of whether complainant established a prima facie
case with respect to the above cited issue and review below, the reasons
articulated by the agency for its action as well as complainant's effort
to prove pretext.
The selecting official testified that she was seeking individuals whose
job applications revealed strong interpersonal and communication skills.
The selecting official noted that she considered the degree of interest
that each candidate showed in the position before she reviewed the job
applications. According to the selecting official, she called each
candidate and six of the eight candidates responded with enthusiasm
about wanting the position, but complainant merely said �Yeah, I guess
so.� The selecting official testified that each applicant except for
complainant attached a training history. The selecting official testified
that certain selectees were chosen based on unique experience, skills,
or training that they possessed. We find that the agency has articulated
legitimate, nondiscriminatory reasons for its selection decisions.
We find that complainant has failed to refute the agency's position that
his nonselection was not attributable to discriminatory motivation.
We find that the selecting official's decision not to interview the
candidates was reasonable in light of the fact that there had been a
hiring freeze and the selecting official was told that she had one day
in which to make her selections. We find that complainant has not shown
that the selecting official's consideration of his less than enthusiastic
response concerning his interest in the position was improper or pretext
intended to mask discriminatory motivation. With regard to complainant's
argument that his level of education and job experience demonstrate that
he was more qualified for the Computer Specialist position, we recognize
that complainant certainly possesses a record of achievement. However,
that does not necessarily mean that complainant's credentials were so
far superior as to render it apparent that his nonselection was due to
discriminatory animus. Complainant has not shown that the selecting
official's reliance on interpersonal skills in troubleshooting and other
customer service as described in the job applications, or as she had
personally witnessed, was an unreasonable criteria upon which to base
a selection.
We note that each of the selectees had strong qualifications as each had
prior appraisal ratings of �Outstanding� and had received performance
awards. Complainant has not shown that it was unreasonable for the
selecting official to base her decisions on certain unique training,
skills, or experience held by an applicant. We acknowledge that
complainant correctly points out that the job application did not require
a training history and that not all of the selectees included a training
history. We also acknowledge that at certain points in her testimony,
the selecting official was unclear as to all the factors that she relied
upon and that she made a few errors in her testimony concerning several
job applications. Nevertheless, the evidence produced by complainant
does not demonstrate that discriminatory motivation was a factor in
his nonselection. Therefore, we find that complainant has not shown,
by a preponderance of the evidence, that the agency's stated reasons
for his nonselection were pretext intended to mask discriminatory intent.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's decision,
because a preponderance of the record evidence does not establish that
race, national origin, or sex discrimination occurred.
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
May 20, 2003
__________________
Date