0120093316
04-19-2011
Robert L. Blair, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, (Mine Safety & Health Administration), Agency.
Robert L. Blair,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
(Mine Safety & Health Administration),
Agency.
Appeal No. 0120093316
Agency No. 09-03-006
DECISION
On July 20, 2009, Complainant filed an appeal from the Agency's June
22, 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 accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against
on the bases of his race and color when he was not selected for two
supervisory positions and when he was denied the opportunity to serve
in a supervisory detail for the full 120 days.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Coal Mine Safety and Health Inspector, GS-12 at the Agency's
Mine Safety and Health Administration (MSHA) facility in West Virginia.
On October 22, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American)
and color (Black) when:
1. on or about April 2008, he was not selected for the position of
Supervisory Coal Mine Safety and health Inspector, GS-13, advertised
under Vacancy Announcement No. PH-08-049;
2. from April 2008 through September 2008, he was denied the opportunity
to serve for the full term as the Supervisory Coal Mine Safety and Health
Inspector position on a temporary 120 day detail; and
3. he was not selected for the Supervisory Coal Mine Safety and Health
Inspector position advertised under Vacancy Announcement No. PH-08-196,
which closed on September 22, 2008.
At the conclusion of the 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). In accordance
with Complainant's request, 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 it had articulated legitimate, non discriminatory
reasons for its actions and Complainant had failed to show that the
articulated reasons were pretext for discrimination.
Specifically, the Agency maintained that, with respect to issue (1), while
Complainant was listed on the Certificate of Eligibles for the Supervisory
Coal Mine Safety and Health Inspector position, he was not selected for
the position because after a review of the application materials and an
interview it was determined that he was not the best qualified applicant
for the position. Complainant believed that he was qualified for the
position advertised under Vacancy Announcement (VA) PH-08-049 because
he had 24 years of experience working in MSHA as a Coal Mine Inspector.
He stated he evaluated ventilation, respirable dust, roof control, and
electrical matters. Additionally, he evaluated plans for compliance to
ensure they matched the mine operations. His relevant education and
experience for the position also included seven years as a Coal Miner
in addition to 24 years in MSHA where he had worked in two Districts,
performing both underground and surface inspections, metal and nonmetal.
Complainant had also attended training at the National Mine Academy.
In contrast, the selectee had 28 years of experience in the mining
industry and 23 years of supervisory and management experience,
supervising up to fifty foremen. The selectee also had an Associate
Degree in Mining Technology and had completed leadership training
in 1995. Additionally, the selectee had mine rescue experience and
ten years experience as a Coal Mine Inspector and Mine Emergency Unit
Member. The selecting official explained that Complainant's lack of
supervisory experience and specialty education made him a less desirable
applicant than the selectee. The selecting official indicated that
he considered prior managerial or supervisory experience to be a key
factor in evaluating candidates and because Complainant did not have
this experience he was not selected.
With regard to issue (2), the Agency explained that during the relevant
time, a Coal Mine Safety and Health Inspector Supervisor became ill and
required a temporary replacement. Complainant was among one of three
individuals selected to serve a maximum 120 day detail assignment to
the position. Each selectee was told that the length of the detail was
dependent upon the return of the absent supervisor. Complainant's detail
began on June 8, 2008. Complainant maintains that he was denied the
opportunity to serve the entire length of the detail and that he was
selected to act as the last of the three selected candidates because of
his race and color. The Agency explained that Complainant was relieved
of his detail duties on September 5, 2008, prior to the maximum 120 day
period due to the return of the absent supervisor to active work duty.
Management explained that had the supervisor not returned, Complainant's
detail would have lasted for the entire 120 day period.
Finally, with regard to issue (3), management explained that Complainant
was not selected for the Supervisory Coal Mine Safety and Health
Inspector position listed in vacancy number PH-08-196 because he
was not the most qualified candidate for the position. The record
indicates that the selectee was also African American and Black.
He had 36 years of experience with the Agency, including 22 years
of mine inspection experience. He also had an Associates Degree and
recent military management experience. During his tenure, the selectee
had acted as the Field Officer Supervisor and was a member of the Mine
Rescue Team for over ten years. It was also noted that the selectee
had significant safety and health experience in his past position as
a Physical Science Technician. In contrast, Complainant did not have
the supervisory and health background that the selectee had. Further,
the selectee had received a "Highly Effective" rating while Complainant
had received an "Effective" rating.
The Agency indicated that Complainant failed to show that the Agency's
articulated legitimate, nondiscriminatory reasons were pretext for
discrimination. As such, the Agency issued a decision finding no
discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency did not look at the entire
history of promotions in the office. He contends that prior to the
African American selectee in this case, all other selectees have been
young white males. Complainant maintains that the Agency does not
have a good reputation for promoting or hiring minority candidates.
Complainant indicated that he would supply more documentation "at
the hearing." In response, the Agency contends that it has provided
legitimate, nondiscriminatory reasons for its actions, and Complainant has
still failed to show that those reasons are pretext for discrimination.
STANDARD OF REVIEW
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 case 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 Constr. 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 U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 Prod., Inc., 530 U.S. 133, 147-48 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
ANALYSIS AND FINDINGS
We find that Complainant has failed to show that the Agency's legitimate,
nondiscriminatory reasons were pretext for discrimination. The Commission
finds that with respect to issues (1) and (2), even if we assume arguendo
that Complainant established a prima facie case of discrimination based
on race and color, the Agency articulated legitimate, nondiscriminatory
reasons for its actions. The Agency explained that Complainant was not
selected for the vacancy in issue (1) because he did not have the prior
managerial or supervisory experience that was needed for the position
while the selectee had 23 years of supervisory experience. Further,
with respect to issue (2), the detail, the Agency explained that
Complainant's length of time in the detail was dictated by the return
of the supervisor. We find that Complainant has presented no evidence
which shows that his race and/or color were considered with respect to
either of these matters.
Regarding the vacancy in issue (3), the record indicates that both
Complainant and the selectee are African American/Black. Consequently,
we do not find a prima facie case of discrimination based on race or
color. Again, even if we assumed that prima facie cases existed, the
Agency articulated a legitimate, nondiscriminatory reason for its action,
i.e., Complainant was not selected for the position because, while he was
minimally qualified, he did not have the required supervisory experience
and health and safety experience that was required. The selectee in
contrast gained safety and health experience and supervisory experience
while in the Army.
Finally, with regard to issues (1) and (3), the Commission finds that
Complainant has not shown that the disparities in qualifications
between him and the selectees are "of such weight and significance
that no reasonable person, in the exercise of impartial judgment,
could have chosen the [selectee] over [him] for the job in question."
Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42,608
(11th Cir. 2006), cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007).
To show pretext, Complainant also argues that the Agency has previously
only selected white males for vacancies. The Commission finds that
other than Complainant's conclusory statement, he provided no evidence
regarding these past selections, the number of selections involved, the
time frames involved or the selecting officials involved. Therefore,
the Commission finds that Complainant has not provided persuasive
evidence that would demonstrates that the Agency's articulated reasons
were pretext for discrimination.
On appeal, Complainant indicated that he would provide additional
documentation "at the hearing." We remind Complainant that he requested
that the Agency produce a final agency decision. Therefore, a hearing
was not conducted in this case.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, it is the decision
of the Commission to affirm the Agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
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
___4/19/11_______________
Date
2
0120093316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093316