0120100652
08-02-2011
Larry H. McElroy, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Larry H. McElroy,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100652
Agency No. ARCEJACK08AUG03351
DECISION
On November 20, 2009, Complainant filed an appeal from the Agency's September 18, 2009, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Regional Business Development Consultant at the Agency's South Atlantic Division facility in Atlanta, Georgia.
On September 19, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), and reprisal for prior protected EEO activity when it failed to select him for the position of Temporary Chief, YC-0340-03, in the South Atlantic Business Management Division. Complainant stated that the Agency initially announced the position as permanent and then re-announced it as temporary shortly thereafter. Complainant stated further that the Agency closed the temporary announcement three business days after its announcement, and that he applied for both announcements. He added that, in August 2008, the Agency pre-selected an African-American female to hold the temporary position.
The Agency accepted Complainant's claim for investigation. During the Agency investigation, the Director of Regional Business (S1) stated that she held a "mini-competition" for all employees who were interested to apply to serve as Temporary Chief, and Complainant did not apply. S1 stated that about five employees applied and a panel selected a female who served for about two months before she left for another position. S1 stated that she then placed the employee who ranked second in the mini-competition (C1) into the position for about six months. S1 indicated that she learned that she had to re-announce the position to comply with Human Resources guidelines, but she needed someone in the position immediately, so she ran the permanent and temporary announcements concurrently. S1 stated that C1 applied for the temporary position so she selected her because she had knowledge of the staff's performance and there was a need for the temporary incumbent to serve on a pay pool panel. S1 noted that she offered the temporary position to Complainant, after he complained and prior to informing C1 of her selection, but he declined. S1 stated that the temporary position was just in place until the permanent position was filled, which was January 2008.
At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that Complainant failed to show pretext. The instant appeal from Complainant followed.
On appeal, Complainant stated that he did not apply for the temporary position under the mini-competition because he was interested in the position permanently. Complainant added that he did not apply for the mini-competition because he wanted to allow other employees to have an opportunity to work as a supervisor as he had worked in a supervisory role earlier in his career. Moreover, Complainant contended that he still had current knowledge of the employees in the division even though he was not their supervisor, and that the level and breadth of his experience was superior to C1's. Finally, Complainant stated that the Temporary Chief position was pre-selected before the position was even offered.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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 Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for not selecting complainant for the position. The Agency indicated that the selectee's recent experience in a supervisory position made her the panel's first choice for the position. We find that the Agency has given a legitimate, nondiscriminatory reason for hiring selectee.
Because we determined that the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to complainant to show that the actions of the agency were a pretext for discrimination. In nonselection cases, a complainant can establish pretext by showing that his qualifications are "plainly superior" to those of selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainant contends that his lengthy career at the Agency makes his qualifications plainly superior to those of selectee. Complainant's tenure alone is not enough for a showing of pretext. Harley v. Department of Agriculture, EEOC Request No. 05880308 (1988); Fodale v. Department of Health & Human Services, EEOC Request No. 05940686 (1995). Length of service, without more, does not necessarily outweigh other factors which may impact qualifications. Id. Further, an employer has freedom to use discretion to choose among qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981); Ypsilantis v. Department of Labor, EEOC Doc. No. 01A05062 (March 27, 2001). Moreover, we observe that , even if preselection occurred as Complainant suggests, Complainant has not shown that any such preselection was motivated by discriminatory animus. Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).
Accordingly, we find that Complainant has failed to show by a preponderance of the evidence that the legitimate, nondiscriminatory reasons articulated by the Agency for its actions are pretext for 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 decision finding that complainant failed to show that the Agency discriminated against him as he alleged.
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
0120100652
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100652