01A11027
07-31-2002
John A. Wyscarver, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service) Agency.
John A. Wyscarver v. Department of Justice
01A11027
July 31, 2002
.
John A. Wyscarver,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service)
Agency.
Appeal No. 01A11027
Agency No. I-98-CO-83
Hearing No. 330-99-8281X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final order.
BACKGROUND
The record reveals that complainant, a Field Adjudication Officer,
GS-1801-12, at the agency's Central Region, Houston, Texas facility,
filed a formal EEO complaint on July 29, 1998, alleging that the agency
had discriminated against him on the bases of race (Caucasian), sex
(male), and age (D.O.B. 9/19/49), when on June 8, 1998, complainant
was notified that he was not selected for the position of Supervisory
Adjudication Officer, GS-1801-13. Also, complainant alleged that the
agency was treating him differently in retaliation for filing his first
EEO complaint, e.g., the field officer program was terminated, and the
complainant was reassigned to the district adjudication position; he
was told that he could no longer carry his weapon; he was removed from
his collateral duty as a firearms instructor; and his office location
was moved during his vacation.
At the time of complainant's first complaint, he was a 49-year-old White
male. In 1998 and 1999, complainant applied for Supervisory Adjudication
Officer positions. Complainant filed his first EEO complaint when a
thirty-two-year-old White female (Sel I) was selected by the acting
District Director (ADD). Complainant filed a second EEO complaint when
a younger Hispanic female (Sel II) was selected by the District Director
(DD).<1> Complainant made the best-qualified list for each position.
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
sex, age, and race discrimination because persons not in complainant's
protected classes, were selected for the positions. The AJ also concluded
that complainant established a prima facie case of retaliation by showing
that at the time of the second selection, the selecting official was
aware of complainant's EEO complaint concerning his first nonselection.
The AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, i.e., the selectees had better qualifications
than the complainant; and the actions described by complainant as
retaliatory were done because of the agency's need for his services in
the exams program area.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion the AJ found
that Sel I had worked in a position which gave her great visibility to the
selecting officials, that she was responsible for the public relations in
the office, and had some experience acting in a supervisory capacity in
the �front office.� Sel I also received a higher score in the objective
factor of education because she had a college degree while complainant
did not. Sel I was also the top-rated individual while complainant was
ranked eighth.
The AJ found that Sel II's experiences were clearly identified on
her application, e.g., application support center manager and greater
ability to communicate in writing, while the complainant's application
omitted some of his experience. Sel II, in her manager position,
had experience in supervisory-type duties, e.g., to assign work and
oversee processes; she also had experience in training, and the ability
to create and deliver training; and knowledge of the law. The DD felt
that complainant was not the best qualified for the position because,
for one reason, complainant's work was primarily in the area of fraud,
and therefore more limited that Sel II's experience.
The agency's final order implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant contends that substantial evidence shows that
the agency's reasons for complainant's nonpromotion were merely a
pretext for discrimination, and substantial evidence supports that the
agency retaliated against complainant after he filed his EEO complaint.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process as set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973), and its progeny. The first
step which 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).
Nonselection Claim
The AJ concluded that complainant established a prima facie case
of sex, age, and race discrimination because the selectees, not in
complainant's protected classes, were selected for the positions.
We note that in a non-selection case, pretext may be demonstrated by
showing that complainant's qualifications are observably superior to
those of the selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th
Cir. 1981); Williams v. Dept. of Education, EEOC Request No. 05970561
(August 6, 1998). Additionally, an employer has greater discretion
when filling management level or specialized positions. Wrenn v. Gould,
808 F.2d 493, 502 (6th Cir. 1987).
Regarding the subjective nature of the selection process, we note
that the Courts have held that Title VII does not protect against
errors in judgment regarding qualifications, only against decisions
motivated by unlawful animus. Turner v. Texas Instruments, 555 F.2d
1251 (5th Cir. 1977). The AJ found that the agency had articulated
legitimate nondiscriminatory reasons for its selections, e.g., the
selectees had better qualifications than the complainant, and were the
best-qualified candidates. The complainant did not establish that
the agency's articulated reasons were a pretext for discrimination.
These findings are supported by substantial evidence.
Reprisal Claim
The Commission has stated that adverse actions need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. Lindsey v. United
States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing
EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the
statutory retaliation clauses prohibit any adverse treatment that
is based upon a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity. Id.
In general, claims alleging reprisal are examined under the tripartite
analysis first enunciated in McDonnell Douglas.
We find that the AJ correctly concluded that complainant failed to
present evidence that any of the agency's actions were in retaliation
for complainant's prior EEO activity. In reaching this conclusion,
we note that the AJ found that the agency had set priorities for the
adjudication area, and there was a numeric goal for naturalizations.
Also, other employees had their assignments changed to facilitate
the achievement of the goal. Concerning the firearm instruction,
the AJ found that complainant's position did not require or allow the
carrying of a weapon, and employees in the adjudication area did not
need to be firearms qualified. The AJ found that operational needs
required complainant to process cases. The AJ found that the agency
had articulated legitimate nondiscriminatory reasons for its actions
alleged by complainant to be in retaliation for his EEO complaint.
The complainant did not establish that the agency's articulated reasons
were pretext. These findings are supported by substantial evidence.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We note that complainant failed to present sufficient evidence that any
of the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
race, sex, or age. We discern no basis to disturb the AJ's decision.
We affirm the agency's final order.
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
_July 31, 2002
Date
1 At this time, the agency chose three selectees, a Hispanic male and
two Hispanic females. One of the Hispanic females was over the age of 40.
Complainant did not allege that he was discriminated against as a result
of the selection of the Hispanic male, or the Hispanic female over 40.