0120064534
03-10-2008
Nathaniel Carter, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Nathaniel Carter,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200645341
Hearing No. 220-2005-00265X
Agency No. 200J05412005101
DECISION
On July 27, 2006, complainant filed an appeal from the agency's June
20, 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 cook, WG-6, employed at the VA Medical Center in Brecksville, Ohio.
On March 29, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (African-American), sex
(male), and in reprisal for prior protected EEO activity [under Title VII]
when he was not referred for selection to the position of cook supervisor,
WS-7404-3/5, in February of 2005.
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 April 11, 2006, and issued
a finding of no discrimination on June 7, 2006.
In her decision, the AJ found the following: on December 8, 2004 the
agency posted a vacancy announcement for the position of cook supervisor,
WS-7404-3/5. The duties of the position as described in the announcement
include responsibility for the overall supervision of approximately
twenty-five to thirty employees, per shift, who are involved in providing
food service to patients. Duties include controlling resources, assigning
work, approving schedule changes and leave, training employees on food
production and service procedures, maintaining food safety, sanitation,
infection control and workplace safety standards. Applicants were
evaluated on six job elements to determine whether they possessed the
basic knowledge, skill and abilities (KSAs) to do the work of a cook
supervisor. Sixteen applicants were determined to be qualified for
consideration for two cook supervisor vacancies. Complainant was not
deemed qualified for consideration. A Caucasian male candidate (C1)
and a Black female candidate (C2) were selected for the position on
February 17, 2005.
The AJ found that complainant testified as to his qualifications for
the position noting that he is employed by the agency as a cook and
assists in training/instructing lower graded employees. Complainant
states that neither of the selectees worked as cooks at the time of their
selection. Complainant further asserts that C2 was pre-selected for the
position by the chief/selecting official (SO). The AJ further found that
SO testified that she interviewed seven candidates for the position and
selected candidates C1 and C2 for the position because they were the best
qualified. SO explained that she did not interview complainant because
he was not referred to her as a candidate. SO denied pre-selecting
C2, and denied assigning C2 to the kitchen to prepare her for the job.
SO explained that the few occasions C2 worked in the kitchen were due
to an emergency and/or because C2 volunteered to do so and not because
she assigned her.
The AJ next found that another management official (M1) testified as
follows: M1 was responsible for screening the applicants for the position.
M1 testified that he utilized in-service placement rating sheets for
wage system jobs to rate each of the applicants. Complainant was
deemed not qualified for referral because his application did not
reflect any supervisory experience and therefore did not pass screen
out element number one, namely, demonstrated leadership ability to
organize and direct the work of others and effectively solve conflicts
within work groups. An applicant must receive at least two points on
each screen out job element to be considered qualified for referral
to a position. Complainant received one point on the job element for
providing information to lower level employees. M1 testified that both
of the selectees possessed prior supervisory experience and were rated
accordingly. The AJ next found that the Human Resources Specialist (H1)
testified she was responsible for the processing of the cook supervisor
vacancies. H1 explained that an applicant must receive at least two
points on each screen out element to be deemed qualified for referral.
H1 also testified that the position does not entail cooking duties,
rather it is a supervisory position.
The AJ found that complainant failed to establish a prima facie case
of race and/or sex discrimination because he did not show that he
was qualified for the position of cook supervisor. The AJ found that
testimony and evidence of record show that complainant's application
for the position does not reflect prior supervisory experience. The AJ
found that this record reveals that complainant was not referred for
consideration because he did not possess supervisory experience as
required for the position. The AJ further found that testimony and
evidence of record show that those applicants who were referred for
consideration passed the screen out elements and were qualified for
consideration.
The AJ further found that complainant failed to establish a prima facie
case of reprisal because he did not show that his non-referral was
retaliatory in nature. Again, the AJ found that testimony and evidence
of record show that complainant was not referred because he did not
possess supervisory experience and therefore did not pass the screen out
element related to supervisory experience. The AJ therefore, found no
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. On appeal, complainant reiterates arguments
previously made. The agency requests 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). 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, 120 S.Ct. 2097 (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).
In this case, assuming complainant established a prima facie case of
discrimination on all of the alleged bases, the agency has articulated
legitimate, nondiscriminatory reasons for not hiring him. The AJ's
finding that complainant has not established pretext, is supported by
substantial evidence in the record.
We note 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). Here, complainant has failed to
make this showing. Therefore, based on a thorough review of the record
and the contentions on appeal, including those not specifically addressed
herein, we AFFIRM the 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 10, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120064534
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036