0120064543
03-06-2008
Mark A. Zaltman, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.
Mark A. Zaltman,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01200645431
Hearing No. 440-2006-00010X
Agency No. EEO05062
DECISION
On July 28, 2006, complainant filed an appeal from the agency's June
28, 2006, 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Human Resources Specialist at the agency's Office of Administration
Planning and Development in Chicago, Illinois. On December 1, 2004, the
agency posted a vacancy announcement for a Supervisory Human Resources
Specialist position. Complainant applied, was found qualified, and
was scheduled to be interviewed on January 18, 2005. Because of a
scheduling problem, the Selecting Official (SO) changed the interview
time to January 19, 2005 at 9:00 AM. On the day of the interview, the
time was changed once again to noon. On the same morning, SO approached
complainant and asked if he was available to be interviewed at 11:00 AM.
Complainant claims that although he was frustrated by the multiple
schedule changes, he felt he had no choice and agreed. Complainant was
interviewed by SO and another management official, with a third panel
member arriving during his final remarks. Complainant claims that,
SO left the room in the middle of the interview for a period of time
without explanation. On February 4, 2005, SO informed complainant that
he had not been selected. On April 5, 2005, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of
religion (Jewish) and reprisal for prior protected EEO activity [arising
under Title VII] when on February 4, 2005, he learned that he had not
been selected for the Supervisory Human Resources Specialist position.
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 and the AJ held a hearing on June 12, 2006 and issued
a decision on June 12, 2006. The AJ found that complainant failed to
establish a prima facie case of discrimination on the alleged bases.
Next, the AJ assumed arguendo that complainant had established a prima
facie case of discrimination on the alleged bases and found that the
agency had articulated legitimate, nondiscriminatory reasons for its
actions. The agency claimed that the selectee2 was better qualified,
had a broader human resources background, and had more managerial
experience than complainant. Finally, the AJ noted that the agency could
have done a better job in maintaining uniformity during the selection
process, but SO's absence during complainant's interview and multiple
interview schedule changes do not raise an inference of discrimination.
The AJ, therefore, found that complainant had failed to prove, by a
preponderance of the evidence, that he was discriminated against on the
alleged bases.
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. On appeal, complainant claims the AJ failed to understand the
evidentiary value of his performance evaluations in which the agency rated
him "highly successful" for five years. Further, complainant claims that
the AJ ignored the disparate treatment he received during his interview.
The agency asks that we affirm the final order.
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).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
We will assume, arguendo, that complainant has established a prima facie
case of discrimination on the alleged bases. The agency has articulated
legitimate, nondiscriminatory reasons for its actions. The agency claims
that the selectee was a better qualified candidate, had a broader human
resources background, and had more managerial experience than complainant.
Further, SO claims that complainant's responses during the interview were
not as conclusive as some of the other candidates. Complainant claims
that he was never taken seriously as a candidate because his interview
was rescheduled multiple times without explanation, SO walked out in the
middle of his interview, and another member of the interview panel only
appeared during the end of his closing comments. Complainant notes that
all three members of the interview panel were present for the selectee's
entire interview. Finally, complainant claims that his past performance
reviews show that he was "highly successful" in the area of coordinating
human resources.
In response, SO claims that other candidates' interview schedules were
also changed and complainant's interview was rescheduled so that two of
the interviewers could travel to New York. SO notes that complainant did
not express any disagreement with the time change, nor indicate that it
would be inconvenient. SO also claims that she left during complainant's
interview to address a work-related issue that needed her immediate
attention. Further, SO claims that complainant was not prejudiced by her
absence because she relied on the judgment of the other panel members and
was familiar with complainant and his work. Additionally, SO claims that
the panel member who arrived late was a human resources expert and was not
needed to assess complainant's responses to the questions which related
to his managerial and leadership experiences. Complainant has presented
no evidence to refute these explanations. Additionally, SO claims that
complainant admitted in his interview that he had minimal experience in
staffing and classification while the selectee's responses demonstrated
extensive experience in all functions related to the position, including
staffing and classification. The Commission finds that substantial
evidence supports the AJ's conclusion that complainant failed to rebut
the agency's explanations as pretext for unlawful discrimination.
We note additionally that the agency has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek
v. Department of the Treasury, EEOC Request No. 05940906 (January 16,
1997). Complainant may be able to establish pretext with a showing that
his qualifications were plainly superior to those of the selectee. Wasser
v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995);
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). In this case,
complainant has failed to make this showing.
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 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
March 6, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record indicates that the selectee is not Jewish. There is no
indication as to whether the selectee engaged in prior EEO activity.
??
??
??
??
2
0120064543
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064543