0120111938
08-02-2011
Herman Caldwell, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
Herman Caldwell,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120111938
Hearing No. 570-2010-00055X
Agency No. 09-CO-FAS-HC-01
DECISION
On February 23, 2011, Complainant filed a timely appeal from the
Agency’s January 25, 2011, final order concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. and Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq. he Commission accepts
the appeal pursuant to 29 C.F.R. § 1614.405(a).
ISSUES PRESENTED
Whether Complainant was discriminated against based on his age (62 and
63, respectively) and reprisal for prior protected EEO activity when:
1. he was not selected in August 2007 for the position of Supervisory
Contract Specialist, GS-15, advertised under Vacancy Announcement
070018519MP; and
2. he was not selected for the position of Supervisory Contract
Specialist, GS-15, advertised under Vacancy Announcement 0900099TC01 in
January 2009.
BACKGROUND
At the time of events giving rise to his complaint, Complainant worked
as a Supervisory Contract Specialist, GS-14, at the Agency’s GSA
Federal Acquisition Service, Integrated Technology Services facility
in Fairfax, VA. He filed an EEO complaint alleging, in relevant part,
the above issues. Following an investigation, he requested a hearing.
Over his objections, the AJ granted the Agency’s motion for a decision
without a hearing. The Agency then made a final order adopting the
AJ’s finding that Complainant failed to prove discrimination.
The two positions at issue were with the Agency’s Federal Acquisition
Service. The first was located in Fairfax, Virginia, and the second
in Arlington, VA. The vacancy announcements and position descriptions
indicated the jobs had similar duties. Both directed procurement
activities for pre-award and post award functions, the first with highly
specialized telecommunications acquisitions, the second with Information
Technology (IT) schedule contracts. Both served as Directors of their
respective organizations, leading them and subordinate supervisors.
Both required working with other organizations. Both demanded technical
contracts knowledge. Both had the same selecting official, who at one
point was Complainant’s supervisor.
On the 2007 position, a panel of three evaluated the candidate
applications, comparing information them with the requirements of each
position (there were three slots). The panel made recommendations to
the selecting official. The panel’s assessment of Complainant and
recommendations on the three selectees was provided by Panel Member 1.
(Report of Investigation (ROI), Exhs. D-3 & E-5). The panel opined
that while Complainant had supervisory experience and gave contractual
leadership on at least one large scale, highly visible telecommunications
effort at the Agency, he did not appear to have the breadth of leadership
experience sought for the position. The panel opined that Complainant’s
responses to some questions were vague and not supported by his resume,
giving examples.
In recommending Selectee 1 (age 53), the panel opined that he had
significant leadership experience associated with complex, highly visible
acquisition programs in telecommunications, displayed considerable
experience in developing complex provisions associated with competitive
acquisitions, and leading teams to achieve program goals.
In recommending Selectee 2 (age 52), the panel opined that she had
significant experience as a contact specialist/contracting officer working
with various IT initiatives in a negotiated competitive environment,
and demonstrated significant leadership experience associated with
procurement of highly visible complex contacting actions.
In recommending Selectee 3 (age 47), the panel opined that he had
significant leadership associated with complex, highly visible acquisition
programs in telecommunications since 1992, and demonstrated supervisory
leadership experience while serving as a Branch Chief in the local
Telecommunications Services program at the Agency.
In explaining his decisions, the selecting official wrote that all the
selectees had a varied background involving multiple types of contract
experience, including sole source and source selection, all had some type
of formal contract training and at one time went through contact training
at the Department of Defense. He wrote that two of the three selectees
had recent extensive experience in sole source selection and addressing
troubled contracts by assisting vendors recover their ability to perform
their contracts. He added that all the selectees had varied management
experience that was important for the vacancy. He stated Complainant
was not selected because the selectees had superior qualifications and
breadth and depth of experience.
On the 2009 position, there was no evaluation panel. The selecting
official explained that he chose Selectee 4 (age 36) and Selectee 5 (age
39) because they had a variety of contract experience in multiple schedule
program venues, and demonstrated their ability to work collaboratively
and a desire to learn more and apply their knowledge for the betterment
of the organization. He explained that he did not choose Complainant
because his personality was not conductive to a collaborative environment,
and repeatedly found ways to prevent programs he was supporting from
moving forward in achieving program goals.
The AJ found that Complainant did not establish a prima facie case of
reprisal discrimination. The AJ explained that Complainant’s claim of
reprisal was based on whistleblower activities, not prior EEO activity,
and that his last EEO activity occurred in March 2004, years before
the non-selections. The AJ found that Complainant did not establish a
prima facie case of age discrimination because he failed to show that
those involved in the selection were aware of his age.
The AJ found that even assuming arguendo that Complainant made out prima
facie cases of reprisal and age discrimination, the Agency explained
the reasons for its selections, referring to the explanations of Panel
Member 1 and the selecting official. The AJ found that Complainant
failed to show these explanations were pretext to mask discrimination.
The AJ noted that Complainant did not show his qualifications were
plainly superior to those of the selectees.
CONTENTIONS ON APPEAL
Complainant contends that the AJ erred in making a summary judgment
decision because he did not have a fair opportunity to develop the record.
He argues that on July 13, 2010, with discovery scheduled to close on
July 16, 2010, he attempted to schedule depositions via email to Agency
counsel, but he did not get back to him. Complainant writes that on
July 16, 2010, he filed a motion with the AJ to extend discovery, which
was summarily denied by the AJ. He writes that he requested notes on
interviews of candidates for like positions in 2009, which were allegedly
considered in this 2009 selection, but did not receive them, and the AJ
denied his motion to compel on this matter.
Complainant contends that he established a prima facie case of reprisal
discrimination. He argues that in the informal process he claimed he was
retaliated against for prior EEO activity. He indicates that his most
recent EEO activity was around September 20, 2007, when he requested an
EEO counselor regarding his 2007 non-selection, but the action did not
go forward then because the Agency failed to assign him an EEO counselor.
He raised the matter again when he contacted an EEO counselor in February
2009 regarding the instant complaint. Complainant contends that he
established a prima facie case of age discrimination. He notes that
that the selecting official knew him, and the first page of all the
candidate applications contains the date of birth of each candidate.
Complainant also argues that there are genuine issues of material fact.
On the 2007 selection, he writes that Panel Member 1 stated in her
affidavit that Complainant had strong Schedule 70 activities that did
not give him the background for what was needed, but when he debriefed
the selecting official about this non-selection, he told him he wanted
a change in how the Multiple Award Schedule 70 Program operated.
Complainant argues there is a dispute on the role of the 70 program
in the selection decision. He adds that while the selecting official
stated management expertise was important for the position, Selectee 2
lacked supervisory experience, and was required to take an introductory
supervisory course after her selection. On the 2009 selection,
Complainant writes that when he debriefed the selecting official on why
he was not selected, he was told he was not a team player. Complainant
argues that there is a genuine issue of material fact on whether this
explanation is credible since the selecting official indicated he was
a team player in his 2007 and 2008 performance appraisals.
In opposition to the appeal, the Agency argues that Complainant had an
adequate opportunity to develop the record. It argues that Complainant
wanted to depose approximately five witnesses, and that there was no
realistic way any of them could be scheduled three days before the close
of discovery. The Agency argues that once discovery closed, it was not
obligated to conduct discovery. The Agency argues that the AJ stayed
discovery deadlines at least twice, and in her order dated June 24,
2010, clearly forewarned the parties that no further extensions would
be granted. It also argues that on the 2009 selection, it provided
Complainant with the documentation in its possession. The Agency argues
that there were no genuine issues of material fact, and that the AJ’s
decision should be upheld.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ’s legal
and factual conclusions, and the Agency’s final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision
on an appeal from an Agency’s final action shall be based on a de
novo review . . .”); see also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9,
1999) (providing that an administrative judge’s “decision to issue
a decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)]
will be reviewed de novo”). This essentially means that we should
look at this case with fresh eyes.
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. § 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition.
The record has been adequately developed for summary disposition.
Complainant has not shown that the AJ abused her discretion when she
denied Complainant’s motion to extend discovery and motion to compel.
Moreover, given the selecting official’s reason for not selecting
Complainant for the 2009 position, we are unconvinced that interview
notes had the potential of changing the outcome of this case. We also
find that there were no issues of material fact which would impact the
outcome of this case, for the reasons set forth below.
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Tex. Dep’t of Cmty. 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, 120 S.Ct. 2097
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
As an initial matter, we agree with the AJ’s finding that Complainant
did not establish a prima facie case of reprisal discrimination.
The EEO activity, including the September 2007 activity, was too remote
in time from the subsequent non-selections to raise an inference of
reprisal discrimination. However, we find Complainant established a
prima facie case of age discrimination. It is reasonable to conclude
that at least some of those involved in the selection processes had some
idea Complainant was significantly older than some of the selectees.
The selecting official knew Complainant, and the ages of all the
candidates were prominently displayed on the first page of each of their
applications. Hence, while those involved in the selection process wrote
they did not know Complainant’s approximate age, and we concede they
may not have recalled seeing dates of birth, we find Complainant created
an inference of age discrimination.
On the 2007 selection, Panel Member 1 and the selecting official explained
that the selectees were chosen because they had superior qualifications
and depth of experience.
Complainant argues that there is a genuine issue of material fact because
the selecting official stated management expertise was important, but
Selectee 2 lacked supervisory experience, and was required to take an
introductory supervisory course after she was selected. Her application,
however, details significant supervisory experience, with successful
examples of supervisory and leadership activities. It indicates that
she served as a Supervisory Contract Specialist/Team Lead, from 2002
to 2007. We also find that even if there was a dispute over the role
of the 70 Program in the selection decision, it does not rise to the
level of a genuine issue of material fact. 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 such evidence,
the Commission will not second guess an agency's assessment of the
candidates' qualifications. Burdine, 450 U.S. 248, at 259 (1981).
Complainant has not shown that the Agency’s reason for choosing the
selectees was pretext to mask discrimination, nor otherwise established
that his 2007 non-selection was discriminatory.
On the 2009 selection, the selecting official stated that he chose the
selectees because of their contract experience and demonstrated ability to
work collaboratively and desire to learn more and apply their knowledge to
the betterment of the organization. He explained that he did not choose
Complainant because his personality was not conductive to a collaborative
environment, and repeatedly found ways to prevent programs he was
supporting from moving forward in achieving program goals. Complainant
argues that there is a genuine issue of material fact on whether this
explanation is credible since the selecting official indicated he was
a team player in his 2007 and 2008 performance appraisals. We disagree.
The selecting official was the rating official in Complainant’s
appraisal covering the period of October 1, 2006 through September 30,
2007. While he wrote therein that Complainant was a team player, on
the three rating criteria of effective working relationships, building
coalitions/communication, and leading change, the selecting official
rated Complainant four out of five, but gave fives on the remaining
rating elements, suggesting some improvement was needed in creating
a collaborative environment. Also, in an email to the EEO counselor,
Complainant conceded that the selecting official previously commented
to him that he did not seem to suffer fools gladly. We give little
weight to the 2008 appraisal since the selecting official was the
reviewing official, not rating official. Complainant has not shown
that the Agency’s reasons for not selecting him were pretext to mask
discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we AFFIRM
the Agency’s final order implementing the AJ’s finding of no
discrimination.
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.
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 (November 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 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
August 2, 2011
__________________
Date
2
0120111938
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111938