0120083056
09-16-2008
Henry P. Richards, Complainant, v. Lurita Alexis Doan, Administrator, General Services Administration, Agency.
Henry P. Richards,
Complainant,
v.
Lurita Alexis Doan,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120083056
Agency No. 07-R6-PBS-HR21
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 5, 2008 final decision 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Site Supervisor
for FedServe Industries, an on-site agency contractor for the agency's
Public Buildings Service (PBS), Facilities Management Division (FMD)
in Wichita, Kansas.
On September 18, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of sex (male)1 and age (61) when:
(1) on June 8, 2007, he was notified that he was not qualified for
the Facility Operations Specialist position advertised under Public
Announcement Number DE-21-07; and
(2) on June 29, 2007, he was notified that he was not selected for the
position of Facility Operations Specialist under Merit Announcement
Number 0760799 and Public Announcement Number DE-21-07.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ) or accept a
final agency decision. Complainant requested a final agency decision.
In accordance with complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b). In its final decision,
the agency found no discrimination occurred.
In its June 5, 2008 final decision, the agency found that complainant
established a prima facie case of age discrimination. The agency
found, however, management articulated legitimate, nondiscriminatory
reason for its actions which complainant did not prove were pretext for
discrimination.
Regarding claim (1), the Human Resources Specialist (Specialist) stated
that complainant was notified he was not being considered for the
position of Facility Operations Specialist under Public Announcement
DE-21-07 because he was not one of the top three highest scoring
candidates. The Specialist stated "when we open a public announcement,
there are hiring rules and regulations administered by the Office of
Personnel Management that do not apply to merit promotion announcements."
Specifically, the Specialist stated that one of the rules is the "Rule of
Three" which means that on the public announcement certification list, the
Human Resources can only refer those candidates with the top three scores.
The Specialist stated that the candidates' scores are determined by their
responses to the vacancy questions. The Specialist stated "using that
process in this instance, the Complainant simply did not score among the
top three. It was not that he was not eligible for hiring or qualified
for the position, and he was not discriminated against because of his
age."
Regarding claim (2), the record reflects that five candidates, including
complainant, applied for the position of Facility Operations Specialist.
The record further reflects that the five candidates were considered
to be best qualified for the subject position, and were referred to the
Selecting Official (SO) for consideration. The record reflects that SO
selected the selectee (younger male) for the subject position because
he was ranked first with an overall score of 87 points while complainant
was ranked third with an overall score of 63 points.
SO stated that he set up an interview panel of three management officials
including himself and that they came up with eleven interview questions
"each of which had a value of 5 points." SO further stated that he
made his selection to select the selectee "according to the selection
panel's final comprehensive scores of the candidates interviewed for
the position." SO stated that the panel also reviewed the candidates'
application packages "which we looked for the requisite background in
facilities management." SO stated that the selectee was also "well-ranked
on his resume, but he also did very well in his interview." SO stated
that when asked a question, the selectee "would pause for a few seconds
to gather his thoughts and then provide us an answer that was a good
sample of what we were looking for in a response." SO stated that the
selectee "simply answered the questions more easily and completely and
scored better in his interview than did the Complainant."
SO stated that he did not select complainant for the subject position
because he "did not demonstrate during the interview process that he was
the candidate best-suited to the position and subsequently scored below
the Selectee in the final rankings." SO acknowledged while complainant
had facilities management experience, complainant "did very well on
his resume ranking but he struggled during his interview." SO stated
"I recall that there were several questions that the Complainant really
struggled to answer, and there was one question he simply couldn't answer
at all at first." SO stated that he gave complainant a second opportunity
to answer the question, and he managed to respond the second time.
SO stated that complainant's answers "in general were average, though,
not reflecting any innovative thinking or any special characteristic
that made him better-suited to the position, and he ultimately ranked
in the middle of the candidate pool." Furthermore, SO stated that
complainant's age was not a factor in his determination to select the
selectee for the subject position.
The Director of Organizational Resources Division (D1), PBS, stated that
she was the concurring official concerning complainant's non-selection
for the subject position. D1 further stated "my role was to review the
outcomes of the process as it was executed by [SO] and the other members
of the selection panel team." D1 stated that she received a notification
of SO's selection by e-mail and concurred with SO's selection "because I
understood the certification and selection processes to have been fair
and objective in content and execution, and designed to identify the
best candidate for the position." Furthermore, D1 stated that she did
not discriminate complainant based on his age.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
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. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This 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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not
prove were a pretext for discrimination, and that complainant has not
demonstrated that these reasons were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 16, 2008
Date
1 The record reflects that during the investigation of the instant
complaint, complainant withdrew sex as a basis.
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0120083056
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083056