01983586
12-10-1999
Keith A. Owens, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Keith A. Owens, )
Complainant, )
) Appeal No. 01983586
v. ) Agency No. 09740H0070
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (Black) and reprisal (prior EEO
activity), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the Commission AFFIRMS the FAD as CLARIFIED.
The record reveals that during the relevant time, complainant was
employed as a Lock and Dam Operator at the agency's Army Corps of
Engineers facility at the Monogahela River Locks, Dam 2, in Pittsburgh,
Pennsylvania. Complainant claims that he was the victim of discrimination
and reprisal as evidenced by his February 1997, non-selection for the
position of Lock and Dam Equipment Mechanic (Position), and that he was
subjected to harassment based on race and reprisal in March 1997, when
his supervisor (S) made a threat to him that he would �disappear� if
he pursued the instant complaint. After unsuccessful EEO counseling,
he filed a complaint. At the conclusion of its investigation of the
complaint, at complainant's request, the agency issued a FAD, which
rendered a determination of no discrimination. Complainant now appeals
this determination, arguing that he was far better qualified for the
Position than the White selectee (SE). He also contends that the scoring
system used in the selection process was arbitrary and subjective,
and designed to favor White applicants. He also alleges that his
non-selection violates a Consent Decree entered into by the agency in
settlement of a class action complaint brought by Black workers at the
facility.<2> The agency requests that we affirm its FAD.
Regarding complainant's claim of harassment, the FAD found that the
evidence showed that S never made the threat that complainant would
�disappear� if he pursued his complaint, and concluded that no harassment
occurred as a consequence. We concur with the FAD's conclusion. We also
find that the record clearly shows that S did not make this threat, and
we further note that complainant did not raise this issue on appeal.
Therefore, we AFFIRM the FAD's finding with respect to his claim of
harassment.
Regarding the non-selection claim, the FAD concluded that complainant
failed to establish a prima facie case of race discrimination or reprisal
because he presented no evidence that he was treated differently than
the other candidates in the selection process. We do not concur with
the FAD's conclusion in this instance.
In the present complaint, complainant can establish a prima facie case of
race discrimination by showing: (1) that he is a member of the protected
group; (2) that he applied for, and was qualified for, the position
for which the employer was seeking applicants; (3) that despite his
qualifications, he was rejected; and (4) a similarly situated applicant,
not in his protected group was chosen for the position. Davidson v. NASA,
EEOC Appeal No. 01965627 (October 2, 1998) (citing Keyes v. Secretary of
the Navy, 835 F.2d 1016, 1023 (1st Cir. 1988)). Here the record shows
that complainant was qualified for the Position, but that he was not
selected in favor of an applicant not of his protected race. Therefore,
we conclude that he has made his prima facie case of race discrimination,
and clarify the FAD accordingly.
Moreover, regarding his claim of reprisal, the record shows that
complainant was an original complainant and named class member covered by
the provisions of the Consent Decree, which became effective in December
1996, and continued in effect at the time of the non-selection in February
1997. Because the Consent Decree dealt with alleged violations of Title
VII concerning, among other things, the non-selection and non-promotion
of Black employees to positions comparable to the Position at issue,
and because all involved responsible management officials were aware
of complainant's participation and class membership, we find that the
non-selection occurred in such a time and manner as to demonstrate a
nexus between complainant's protected activity and the non-selection
at issue, so as to create an inference of reprisal. See Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). Therefore, we conclude that complainant
has established a prima facie case of reprisal, and clarify the FAD
accordingly.
However, the Commission concurs with the FAD's ultimate conclusion
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. In reaching this determination, we note that the record
fails to support complainant's primary contention that he was far better
qualified than SE. Complainant's application was scored by a personnel
specialist, using uniform quality ranking factors, who explained in
detail her reason for the scores given to complainant. She provided
unrebutted testimony that she was extra careful with complainant's
application because of the Consent Decree, and even had two other
ranking specialists independently review complainant's application,
without disclosing his identity to them, to insure that his score was
fair and accurate. Complainant's application consistently scored in the
70's all three times, which was high enough to be basically qualified
for the Position, but too low for referral for selection, which required
a minimum score of 80. SE's score was 85, and both the SO and referring
personnel specialist testified that he was referred and selected because
his training and experience demonstrated an �expert� level of ability,
whereas complainant's application only showed a �basic� level of ability
to perform the functions of the Position.
Although on appeal complainant argues that the scoring process
was arbitrary, subjective and easily manipulated in favor of White
candidates, he presents no evidence to corroborate this contention, nor
can we discern any inherent flaws of this nature with the scoring system,
which appears to be objective and was consistently applied to all of the
applications received under the vacancy announcement. We note, moreover,
that it is well established that an employer has the discretion to choose
among equally qualified candidates. See Krause v. Department of Interior,
EEOC Appeal No. 01970655 (May 13, 1999) (citing Canham v. Oberlin College,
666 P.2d 1057, 1061 (6th Cir. 1981).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 the decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive the decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
December 10, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
__________________________
Equal Employment Assistant1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2Complainant also argues that the Consent Decree itself is evidence of the
agency's propensity to discriminate against Black applicants. However,
as noted in the agency's appeal brief, the Consent Decree states that
the agency makes no admission that it engaged in discriminatory conduct.
Moreover, the Consent Decree was issued by the U.S. District Court of
the Western District of Pennsylvania and the Commission does not have
jurisdiction to address alleged violations thereunder.