0120081002
08-03-2009
Luis C. Perez, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Luis C. Perez,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120081002
Hearing No. 480-2006-00281X
Agency No. 056106501295
DECISION
On December 17, 2007, complainant filed an appeal from the agency's
November 8, 2007 final order 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., 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(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
an Automotive Mechanic, NA-5823-10, in the Morale, Welfare, and Recreation
Department at the agency's Naval Weapons Station in Seal Beach, CA.
On February 14, 2005, the agency posted a vacancy announcement for the
position of Assistant Golf Course Superintendent, NF-1101-03, at the Navy
Golf Course in Cypress, California. The primary duty of the position
is to assist in the management and operation of the Navy Golf Course.
Complainant applied for the position and was rated qualified. The
selecting official appointed an interview panel to interview, rate, and
rank the candidates and to make a recommendation to him for selection.
One of those selected for the interview panel was the brother-in-law of
a former employee whom complainant testified against in an EEO hearing,
who later resigned prior to being terminated. The panel interviewed
three candidates, and after the interviews, complainant was ranked
second-highest by the panel. Another individual (white, 28 years old,
no prior EEO activity) was selected for the position.
Complainant asserts that he is better qualified for the position
because he has 22 years of experience at the Cyprus location and has
extensive knowledge of the landscaping of the golf course property,
as well as experience with golf course maintenance hydraulic units.
Further, complainant asserts that he can better communicate with the
crew because he is fluent in Spanish.
In contrast, the agency asserts that the selectee was the most qualified
candidate because he clearly answered all questions during the interview
and demonstrated his knowledge and transferable skills. Further,
the agency asserts that the selectee's experience related to equipment
operations, chemical spraying requirements, and supervising staff was
documented on his resume. Finally, the agency asserts that complainant
did not have supervisory experience, did not have first-hand knowledge
of the irrigation system, and lacked experience in chemical spraying.
On June 3, 2005, complainant filed a formal complaint of discrimination
on the bases of race (Hispanic1), national origin (Mexico), age (41),
and in reprisal for prior protected EEO activity when on March 17,
2005, he was not selected for promotion to the position of Assistant
Golf Course Superintendent, NF-1101-03, announcement number 05-004.
During the investigation, it was revealed that the selectee misrepresented
his work experience on his resume and lied about past D.U.I. convictions.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on August 21, 22, 23, 29,
and 30, 2007. The AJ issued a decision on August 31, 2007, finding
that complainant failed to establish that the agency's legitimate,
non-discriminatory reasons were pretext for discrimination. The agency
subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that he was subjected to discrimination as
alleged.
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. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Complainant alleges that he was discriminated against when he was
not selected for the Assistant Golf Course Superintendent position
on the bases of his race (Hispanic), national origin (Mexico), age
(41), and in reprisal for prior protected EEO activity. 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). Here, we will
assume for the sake of argument that complainant established his prima
facie cases of discrimination.
The agency articulated legitimate, non-discriminatory reasons for its
action. Specifically, complainant was not as qualified as the selectee.
Further, all four individuals on the selection panel rated the selectee
higher than complainant based on their answers to the questions during
the interview and information derived from their resumes.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, non-discriminatory reasons
are pretext for discrimination. In a non-selection case, pretext may be
demonstrated by a 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. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). Here, while complainant established that
he worked for the agency longer than complainant, he did not establish
that his qualifications were observably superior to the selectee's.
Further, while complainant established that there was a conflict of
interest between himself and one of the panel members, the AJ correctly
found that the panel member's rating of complainant did not differ
substantially from the ratings of the other three panel members, who had
no knowledge of complainant's prior protected activity. The AJ also
correctly concluded that the panel member had no influence on the other
panel members' decisions, and had his scores been eliminated the selectee
still would have been ranked the highest. Additionally, complainant
asserts that the panel purposely ignored the fact that the selectee lied
on his resume about his work experience and past D.U.I. convictions
in order to avoid selecting complainant for the position. The record
reflects that the agency was not aware of the selectee's exaggerated
resume and D.U.I. convictions until the investigation into this EEO
complaint, as they did not appear in the agency's background check.
Complainant failed to establish that discriminatory animus more likely
than not played a role in the agency's decisions. Therefore, we find
that complainant failed to establish that the agency's legitimate,
non-discriminatory reasons were 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
final decision, because a preponderance of the evidence of record does
not establish that discrimination occurred as alleged.
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
August 3, 2009
Date
1 We note that, under the statutes and regulations enforced by the EEOC,
the term "Hispanic" denotes a national origin rather than a race.
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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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