0120083130
09-11-2008
Roy E. Stout, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Roy E. Stout,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120083130
Agency No. 07-0040-AL
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 4, 2008 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On January 8, 2007, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful. Subsequently,
complainant filed the instant formal complaint on May 29, 2007. Therein,
complainant alleged that the agency discriminated against him on the
bases of race (American Indian) and age (46).
On June 21, 2007, the agency issued a partial dismissal. The agency
framed complainant's claims in the following fashion1:
1. on December 4, 2006, complainant was not selected for the position
of National Nuclear Security Administration (NNSA) Supervisory Courier,
GS-0084-13, Vacancy Announcement Number 06-0221;
2. on December 20, 2006, during the Christmas party, only one member
of the senior staff at Eastern Command would sit down or talk with
complainant and his family;
3. in approximately July 2006, [Supervisory Transportation Manager (M1)]
pressured him to reveal information regarding a report of a fight among
staff members;
4. in March 2006, he asked [Selecting Official (SO)] about the rating
process and complainant was told "it was not the responsibility of the
Selecting Official to seek other information and that complainant was
graded on his answers to the interview panel only";
5. in February 2006, the job postings were withheld until the younger
Agents could meet the minimum time in grade to be qualified for the
positions, and later a peer review board was held with all Standing Unit
Commanders, where [M1] wanted to wait for qualified candidates for the
positions;
6. on or about April 7, 2004, [M1] stated to an employee "that
motherfucker will never run another trip out of here," and when
complainant returned to work shortly thereafter, [M1] called him into his
office and counseled complainant for delaying the March 29, 2004 trip;
7. in June 2002, the Convoy Commander positions were opened up for the
second time in over ten years, which extended to the GS-10 grade level;
8. in June 2000, he was informed he would be replaced as one of the team
leaders for the Shoot House Instructor School after he made a comment
about his supervisor's personal life;
9. from about April 2004 to April 2005, he was not allowed to do his job;
and
10. in June 2000, he was informed by [M1], [identified agency official A]
and [identified agency official B] that he was not selected for a Convoy
Commander position.
The agency accepted claim 1 for investigation. The agency dismissed
claims 2 through 7 and 9 pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim, finding that complainant was not aggrieved
regarding the matter identified therein. The agency also dismissed
claims 3 through 7 and 9 on the alternative grounds of untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
further dismissed claims 8 and 10 on the grounds of untimely EEO
Counselor contact. The agency stated, however, claims 2 through 10
would be considered as background information for claim 1.
On July 26, 2007, the agency issued another partial dismissal. Therein,
the agency stated that in response to complainant's e-mail dated July 5,
2007, it had amended the Acceptance/Dismissal letter to address the new
allegation raised in his e-mail. Therefore, the agency stated that it
rescinded the original June 21, 2007 partial dismissal in its entirety.
The agency framed complainant's claims in the following fashion2:
1. on December 4, 2006, he was not selected for the NNSA Supervisory
Courier, GS-0084-13, Vacancy Announcement Number 06-0221;
2. on November 30, 2006, he was not selected for the NNSA Supervisory
Courier, GS-0084-13, Vacancy Announcement Number 06-0049B;
3. on December 20, 2006, during the Christmas party, only one member of
the senior staff at Eastern Command would sit down or talk with him and
his family;
4. in approximately July 2006, [M1] pressured him to reveal information
regarding a report of a fight amongst staff members;
5. in March 2006, he asked [SO] about the rating process and complainant
was told "it was not the responsibility of the Selecting Official to
seek other information and that complainant was graded on his answers
to the interview panel only";
6. in February 2006, the job postings were withheld until the younger
Agents could meet the minimum time in grade to be qualified for the
positions, and later, a peer review board was held with all Standing
Unit Commanders, where [M1] wanted to wait for qualified candidates for
the positions;
7. on or about April 7, 2004, [M1] stated to an employee "that
motherfucker will never run another trip out of here," and when
complainant returned to work shortly thereafter, [JB] called him into his
office and counseled complainant for delaying the March 29, 2004 trip;
8. in June 2002, the Convoy Commander positions were opened up for the
second time in over ten years, which extended to the GS-10 grade level;
9. in June 2000, complainant was informed he would be replaced as one
of the team leaders for the Shoot House Instructor School after he made
a comment about his supervisor's personal life;
10. from approximately April 2004 to April 2005, complainant was not
allowed to do his job; and
11. in June 2000, he was informed by [M1], [identified agency official A]
and [identified agency official B] that he was not selected for a Convoy
Commander position.
The agency accepted claim 1 for investigation. The agency dismissed claim
2 pursuant to 29 C.F.R. � 1614.107(a)(2) for raising a matter that has
not been brought to the attention of EEO Counselor; and on the alternative
ground of untimely EEO Counselor contact. The agency dismissed claims 3
through 8 and 10 for failure to state a claim, finding that complainant
was not aggrieved regarding the matter identified therein; and claims
4 through 8 and 10 on the alternative ground of untimely EEO Counselor
contact. Finally, the agency dismissed claims 9 and 11 on the grounds
of untimely EEO Counselor contact.
At the conclusion of the investigation of claim 1, 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) or
accept a final agency decision. Complainant requested a final agency
decision. In accordance with complainant's request, the agency issued
a final decision pursuant to 29 C.F.R. � 1614.110(b). In its final
decision, the agency found no discrimination occurred.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. 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, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record reflects that six candidates, including complainant, applied
for the position of NNSA Supervisory Courier, and that they were
found to be qualified and were referred to the SO for consideration.
The record further reflects that SO stated that he implemented a panel of
two panelists. SO further stated that after interviewing the candidates,
the panel "provided me with a list that depicted how each candidate had
performed during the interview. [Complainant's] score indicated that
his performance was not among the top candidates." SO stated that he
was looking for someone "capable of making decisions, problem solving."
SO stated that during the interview process, complainant "did not
demonstrate those capabilities as well as the other applicants."
SO stated that complainant's race and factors were not factors in his
determination not to select him for the subject position.
Regarding complainant's allegation that SO did not confer with his
(complainant's) supervisor during the selection process, SO acknowledging
not conferring with his former supervisor. SO stated, however, during
the relevant time, the former supervisor had retired and was working
as a contractor with the agency. SO further stated, "I did not feel
it proper to consult with a contractor regarding a federal employee."
Regarding complainant's allegation that SO denied him EO representative
to sit in on the interviews, SO denied it. Specifically, SO stated
he invited an identified EEO representative to sit on the interviews
"but he asked to be excused for operational reasons."
One of the two panelists (P1) stated that he and the other panelist (P2)
interviewed all candidates, including complainant, and "rated them based
on their performance during the interviews and submitted a list of the
candidates and their score to [SO]." P1 further stated that as a result
of his performance during the interview, complainant "scored either last
or next to last. The factor that contributed most to his low score was
his tendency to not stay on track. He would start off good, but at some
point he would leave the subject and start talking about something not
related to the question."
P2 stated that based on the candidates' performance, he and P1 "placed
them in rank order and submitted the list of the candidates and their
scores to [SO]." P2 further stated,"I believe that [Complainant]
was ranked last. He wandered off with his answers and appeared not
to understand the questions." The Commission concludes that agency
management has articulated legitimate, nondiscriminatory reasons for
its non-selection, which complainant failed to prove were pretext for
unlawful discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
September 11, 2008
Date
1 For purposes of clarity, the Commission has re-numbered complainant's
claims as claims 1 through 10.
2 For purposes of clarity, the Commission has re-numbered complainant's
claims as claims 1 through 11.
3 On appeal, complainant does not challenge the July 26, 2007 partial
dismissal issued by the agency regarding claims 2 through 11. Therefore,
we have not addressed these issues in our decision.
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0120083130
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083130