01A14625
12-23-2002
Martin Johnson, Jr., Complainant, v. Paul H. O' Neill, Secretary, Department of the Treasury, Agency.
Martin Johnson, Jr. v. Department of the Treasury
01A14625
December 23, 2002
.
Martin Johnson, Jr.,
Complainant,
v.
Paul H. O' Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A14625
Agency Nos. 99-2223, 97-2063
Hearing No. 310-AO-5103X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
BACKGROUND
The record reveals that complainant, a Currency Examiner, KG-3513-5, at
the agency's Bureau and Engraving and Printing (BEP), Western Currency
facility (WCF), located in Fort Worth, Texas, filed two formal EEO
complaints, Agency Nos. 99-2223 and 97-2063. At the conclusion of
the investigations, complainant received copies of the investigative
reports and requested a hearing before an EEOC Administrative Judge
(AJ). Prior to the hearing, complainant withdrew Agency No. 97-2063,
and withdrew the allegation of discrimination based on gender (male).
Therefore, the issue before the AJ was whether the agency discriminated
against complainant on the bases of race (African-American) and reprisal
for prior EEO activity when he was ranked below the best qualified cut-off
score for the position of Stationary Engineer, WE-5401-00, advertised
under vacancy announcement #99-0002-SRP. Following a hearing the AJ
found no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race discrimination because there were two Caucasian candidates who did
not make the best qualified list. As to complainant's reprisal claim,
the AJ found that only one member of the three-person ranking panel was
aware of complainant's prior EEO activity. The AJ also found that there
was no evidence that this member shared his knowledge of complainant's
prior activity with the other panel members. The AJ concluded that there
was no evidence that the process by which the best qualified list was
created deviated from standard procedures such that an inference can be
made that complainant was discriminated against on the basis of reprisal.
The AJ also concluded that the agency articulated legitimate,
non-discriminatory reasons for its challenged selection. Specifically,
the AJ found that the issue in this case was not complainant's
qualifications, but the manner in which complainant presented his
qualifications to the agency in his applications. The AJ found that
complainant's application consisted of position description and other
irrelevant items that did not describe his work history and/or experience
related to the subject position. The AJ noted that complainant did not
make the challenged best qualified list because his overall score of five
was below the required nine point eight (9.8) score needed to make the
best qualified list. The AJ found that complainant's application did
not contain information indicating that he was qualified for the subject
position. The AJ found that complainant attached to his application not
only descriptions of jobs he performed, but descriptions of jobs he had
not performed, and there was no indication of whether or how complainant
performed the jobs. The AJ concluded that the inclusion of jobs that
complainant did not perform is further evidence that his application
was presented in a format that was difficult to assess. The AJ further
found that complainant's KSA's were not detailed, and complainant conceded
this point in the hearing. The AJ found that complainant's application
simply described how certain equipment functions and/or operates, but
it was unclear whether and to what extent, complainant operated the
equipment described in the attachments to his SF-171.
The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
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.
Complainant's claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).
A complainant must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited reason was a factor
in the adverse employment action. McDonnell Douglas Corp. v. Green, 411
U.S. at 802; Furnco Construction Corp v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action (s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We agree with the AJ that complainant failed to establish a prima facie
case of discrimination. We conclude that even assuming arguendo,
that complainant established a prima facie case of discrimination,
the agency established a legitimate nondiscriminatory reason for its
action, namely, complainant's unclear application rendering his score
below the cut-off. The record reveals that complainant's application was
not clear, that he failed to explain if or how he used various equipment
and that the application contained numerous photocopies of information
that was not relevant. The record also reveals that complainant failed
to provide detailed examples or explain how his knowledge, skills and
abilities qualified him for the position. In contrast, the selectee's
application was clear to understand since he provided specific examples of
his experience and how he has used his knowledge, skills and abilities.
Finally, the record reveals that the cut-off score for the position was
determined to be 9.8, and that complainant's score was a 5.
Where the agency has articulated a legitimate, nondiscriminatory reason
for the personnel action at issue, the factual inquiry can proceed
directly to the third step of the McDonnell Douglas analysis. Chouteau
v. United States Postal Serv., EEOC Appeal No. 01973853 (Mar. 10, 2000).
We find that complainant failed to show pretext and we discern no basis
to disturb the AJ's decision. In reaching this conclusion, we note
that complainant conceded at the hearing that his knowledge, skills and
abilities were not detailed in his application. Complainant merely argued
that the selecting panel did not have a subject matter expert qualified
to rank the applicants, but, he failed to rebut that his application
was unclear.
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 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
December 23, 2002
__________________
Date