0120071584
04-28-2009
Julius L. Spearman, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.
Julius L. Spearman,
Complainant,
v.
Paul Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal Nos. 0120071584, 0120082582
Agency Nos. 06R3FSSJS09, 06R3FASJS20
DECISION
The above referenced appeals are consolidated for joint processing
pursuant 29 C.F.R. � 1614.606. Appeals Numbers 0120071584 and 0120082582
relate to agency's final decisions dated January 17, 2007 and May 15,
2008, respectively. In the complaints underlying these decisions,
complainant alleged 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 Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeals are accepted pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, complainant was a Contract Material Handler1
at the Eastern Distribution Center (EDC) in Burlington, New Jersey.
In October 2005, the agency posted Vacancy Announcement Number
DEU-03-06-001, advertising vacancies for Material Handler positions
at the WG-6907-06 level. The vacancy announcement stated that the
incumbents were required to have experience working in a warehouse,
including work such as comparing incoming items with shipping documents;
assembling items for shipping; moving stock by forklifts, hand trucks, or
other materials handling equipment; and determining the proper sequence to
perform specific tasks to ensure safety in loading, organizing, storing
and shipping warehouse materials. It also stated that applicants must
be able to independently perform the work of a Material Handler without
more than normal supervision. The position description stated that in
hazardous materials storage areas, incumbents would insure the safe
receipt, storage, and movement of hazardous and toxic materials and
substance such as chemicals, or radioactive materials in accordance with
facility and regulatory requirements. On December 19, 2005, complainant
was interviewed for the position, but was not selected. The agency
selected three disabled veterans and two non-disabled veterans.
In January 2006, the agency had several additional vacancies because of
retirements. Accordingly, there was a second round of selections for the
Material Handler, WG-6907-06 position. Complainant was selected when the
second round of selections was made. Four candidates were selected from
the second round. However, on January 6, 2006, before the selections
could be finalized, a hiring freeze was placed on all personnel actions
in the agency. Therefore, no one selected in the second round was hired.
Complainant sought EEO counseling and, on May 23, 2006, filed his first
EEO complaint alleging that he was discriminated against on the basis
of disability (disabled veteran/right shoulder and right ring finger
injury) when he was not selected for a Material Handler, WG-6907-06,
position advertised under Vacancy Announcement Number DEU-03-06-001.
In or about July 2006, during the hiring freeze, management obtained
waivers to promote one individual to a vacant Management and Program
Analyst position and to fill a vacant Motor Vehicle Operator position.
Management also obtained waivers from the hiring freeze to extend
the terms of 13 employees who previously had been hired: 11 Material
Handlers, one Material Handler Leader, and one Transportation Assistant.
In late August 2006, complainant learned that management obtained the
hiring freeze waivers.
On September 23, 2006, complainant filed his second EEO complaint alleging
that he was discriminated against on the bases of race (African-American)
and in reprisal for prior EEO activity when management failed to obtain
a waiver for the job freeze to allow him to be hired for a Material
Handler position, but did obtain a waiver so another employee could be
hired for a position on July 17, 2006.
At the conclusion of the investigations, complainant was provided with
a copy of each of the reports of investigation and notices of his
right to request hearings before an EEOC Administrative Judge (AJ).
When complainant did not request a hearing concerning either complaint
within the time frame provided in 29 C.F.R. � 1614.108(f), the agency
issued final decisions pursuant to 29 C.F.R. � 1614.110(b), in each
case concluding that complainant failed to prove that he was subjected
to discrimination as alleged.
In its decision dated January 17, 2007, the agency concluded that
assuming, arguendo, complainant had established a prima facie case
of disability discrimination, the agency nonetheless had articulated
legitimate, nondiscriminatory reasons for its actions. The selecting
official (SO) testified that he based his opinion on candidates' resumes,
interviews, experience, and, if an applicant currently worked on a site,
the applicant's job performance. The agency stated that management
was seeking an applicant who could operate a forklift, had knowledge of
documentation and warehouse operations, was dependable, had certified
hazmat experience, and could effectively work with others with little
supervision after training. All four members of the interview panel
testified that the five selectees performed better than complainant
during the interview process. The panelists stated that complainant
did not interview well, and provided vague responses. For example,
complainant did not answer the question when he was asked how he
[complainant] would organize his daily tasks, and did not respond to
the question about interaction with people. In addition, the panelists
observed that complainant did not have leadership experience comparable
to the selectees, his application was not as detailed as those of the
selectees, he had no hazmat certificates, and he did not provide many
examples or show enthusiasm during the interview.
Further, the panelist members testified that complainant's disability
status was not a factor in his non-selection. Management alleged
that there were five selections; three were disabled veterans and
two non-disabled veterans. The agency also stated that complainant's
disability status was considered during the selection process and that
he was given a 10-point preference. The agency further stated that
complainant was selected during the second round of selections, but a
hiring freeze was enacted and no hires were affected.
In its decision dated April 11, 2008, the agency concluded that
complainant failed to establish a prima facie case of race discrimination,
but he did establish a prima facie case of retaliation. The agency
nevertheless found that that management articulated legitimate,
nondiscriminatory reasons for not obtaining a waiver from the hiring
freeze to hire complainant into the Material Handler position.
Specifically, the Director of the Eastern Distribution Center (SL)
explained that on January 5, 2006, during the second round of selections
for the Material Handler position, complainant and three other applicants
were found to be qualified and were referred to the SO for consideration.
However, on January 6, 2006, the Acting Federal Acquisition Service
Commissioner placed a hiring freeze on all GSA personnel in the Federal
Acquisition Service (FAS), Federal Supply Service (FSS) and Federal
Technology Service (FTS). The hiring freeze applies to all managerial,
supervisory, and non-supervisory positions in both General Schedule and
Federal Wage Systems. SL averred that because the selection process
had not been completed, complainant and the three other individuals were
all affected by the hiring freeze.
SL also stated that during the hiring freeze management did file "Hiring
Exception Requests" for the positions of Management and Program Analyst,
Motor Vehicle Operator, and for agency employees whose terms would expire
during the hiring freeze. The agency found that management did not
request waivers from the hiring freeze for Material Handler positions
nor for contract employees, such as complainant. Further, the agency
found that complainant failed to establish that its articulated reason
for its action was pretext for retaliation.
CONTENTIONS ON APPEAL
In his statement submitted on appeal, complainant contends that he was
better qualified for the position at issue than the selectees because
he had forklift and Material Handler experience. Complainant further
argues, among other things, that Caucasian employees were given special
consideration during the hiring freeze. Complainant also contends
that the agency engages in a pattern and practice against disabled and
non-disabled veterans applying for government positions. The agency
raises no contentions on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, without so deciding, that complainant established a prima facie
case of disability discrimination, the record establishes that the agency
articulated a legitimate, nondiscriminatory reasons for its actions.
The record reveals that complainant was not selected during the first
round of selections because he did not perform well in his interview,
did not have a hazmat certificate, and did not have the experience in
warehouse operations that the selectees possessed. Regarding the second
round of selections, the record reveals that no final selection was made
because of the hiring freeze.
We find that complainant has not demonstrated that the agency's
articulated reasons were a pretext for discrimination. In non-selection
cases, pretext may be found where complainant's qualifications are
demonstrably superior to those of the selectee, Hickman v. Department
of Justice, EEOC Appeal No. 01A11797 (December 20, 2001) ( citing
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981)), we have also
recognized that an employer has the discretion to choose among equally
qualified candidates. We find that complainant has not presented any
persuasive evidence to show that his qualifications were demonstrably
superior to that of the selectees.2
We also find that the agency articulated legitimate, nondiscriminatory
reasons for not obtaining a waiver from the hiring freeze to hire
complainant into the Material Handler position. Specifically, the record
reveals that management only requested waivers from the hiring freeze
for the positions of Management and Program Analyst, Motor Vehicle
Operator, and for individual's who were already agency employees,
not for contract employees such as complainant. Complainant failed to
support his allegation that discriminatory animus motivated the agency's
action with any concrete evidence. The Commission has long held that
a complainant's allegations, without more, do not support a finding
of discrimination. See, e.g., Grant v. United States Postal Service,
EEOC Appeal No. 0120061507 (August 29, 2007).
CONCLUSION
Therefore, after a review of the record, including statements submitted
on appeal, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
April 28, 2009
Date
1 Complainant was employed by Management Systems Incorporated (TMI), which
provides the contract labor force for the agency's Eastern Distribution
Center (EDC) in Burlington, New Jersey.
2 To the extent that complainant may be claiming that the agency's
selection process had a disparate impact because it excluded disabled and
non-disabled veterans, the Commission notes that a veterans preference
or status is not a protected basis for filing an EEO complaint. See Ness
v. USPS, EEOC Appeal No. 01981368 (November 21, 2000).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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