01971367
08-26-1999
Stephen Pulley )
James Minton and )
Stephen Pulley )
Appellants, ) Appeal Nos. 01971367
) 01971438
v. ) Agency Nos. 93(118)ID
) 94(36)ID
Bill Richardson, ) Hearing Nos.350-95-8140X
Secretary, ) 380-96-8007X
U.S. Department of Energy, )
Agency. )
)
DECISION
Appellants timely initiated appeals from two final agency decisions
(FADs) concerning their equal employment opportunity (EEO) complaints
of unlawful employment discrimination on the bases of religion (Latter
Day Saints (Mormon)), sex (male), and age (D.O.B. 2/18/40 and 3/14/43,
respectively), in violation of Title VII of the Civil Rights Act of
1964, 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. Appellant Minton alleges he was discriminated against on the
aforementioned bases when he learned the agency did not select him for
the position of Supervisory Accountant, Accounting Branch, GM-510-14,
pursuant to Vacancy Announcement No. MP-ID-93-15. Appellant Pulley
alleges he was discriminated against on the aforementioned bases when
he was not selected for the position of Accounting Officer, GM-510-15,
pursuant to Vacancy Announcement No. MP-ID-93-27. As the appeals involve
substantially similar allegations of discrimination and relate to similar
matters, they are consolidated pursuant to 29 C.F.R. �1614.606. The
appeals are accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decisions are AFFIRMED.
The record reveals that appellant Minton, a Staff Accountant, GS-13,
in the Accounting Branch of the Finance Division, and appellant Pulley,
a Supervisory Financial Analyst, Contract Finance and Control Branch
of the Finance Division, at the agency's Idaho Falls, Idaho facility,
filed formal EEO complaints with the agency, alleging that the agency
had discriminated against them as referenced above. At the conclusion
of the investigations, appellants requested a hearing before an Equal
Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
The record reveals that on December 6, 1992, a new Chief Financial
Officer (CFO) (DOB 10/8/42, male, non-Mormon) reported to the Idaho Falls,
Idaho facility. The CFO was responsible for three Divisions: the Finance
Division, the Plans and Budget Division, and the Performance Assessment
Division. The CFO would be the Selecting Official for the positions.
The CFO replaced the Acting CFO (DOB: 4/5/38, male Mormon).
The AJ found evidence in the record that the Idaho facility had a
reputation for some of the Mormon males subjecting the non-Mormon females
and minorities to a hostile environment. Furthermore, the AJ found that
evidence indicated that some non-Mormons believed that Mormon males were
given preference over non-Mormon individuals, females and minorities.
There was also some evidence that Mormons proselytized non-Mormons
at work.
It is undisputed that upon the CFO's arrival, he asked his secretary to
annotate an employee list by indicating who the Mormon personnel were.
The CFO testified that he did this in order so he would not offend
Mormon employees by, for example, offering them a cup of coffee, which
they did not drink. The CFO did not create a similar list of employees
of any other religions.
Appellant Minton
On April 7, 1993, appellant Minton submitted an application package
for a Supervisory Accountant, GM-510-14 position. The CFO, who was the
selecting official for the position, testified that he did not review the
applicant's work samples, check references or give consideration to prior
work experience or supervisory experience. Instead, he testified that he
based his decision on a review of the SF-171's, one hour interviews, as
well as his observation of the candidates while working alongside them.
On May 7, 1993, the CFO selected Selectee 1 (DOB: 12/27/56, female
non-Mormon) for the position. In his decision, the AJ found that
appellant had established a prima facie case of discrimination on the
bases of sex, age and religion.
The AJ then concluded that the agency had articulated legitimate,
nondiscriminatory reasons for the non-selection. Specifically, the AJ
found that upon his arrival into his new position, the CFO wished to
change the office in order to provide more effective customer service.
The CFO testified that he found the office had a lack of policy and
documentation, and the staff was too dependent on their supervisors,
and not on their own intellect. The CFO testified that he wanted to
fill the positions with individuals who could teach their subordinates
to think more for themselves, and to be more independent and accountable.
To that end, the CFO testified that he did not select appellant Minton
for the position because he was, �remarkably devoid of comprehensive
knowledge of modern leadership theories.� Furthermore, appellant Minton
lacked technical abilities and was not knowledgeable about the need for
a customer service focus. Instead, Selectee 1 had an open management
style, focused on customer service, and had the ability to work well
with all levels of management.
Appellant Pulley
In September 1993, appellant Pulley applied for the position of Accounting
Officer (Director of the Financial Services Division), GM-510-15.
Appellant Pulley and five other candidates applied for the position,
all of whom were referred to the CFO for selection. On October 29,
1993, the CFO selected Selectee 2 (DOB: 7/28/55, female non-Mormon)
for the position. The CFO testified that he based this decision
on his observations while working alongside Selectee 2 for the past
eleven months. In his decision, the AJ found that appellant Pulley had
established a prima facie case of discrimination on the bases of sex,
age and religion.
The AJ also found that the agency had articulated a legitimate,
nondiscriminatory reason for its non-selection. In order to serve the
CFO's goals for the office as mentioned above, the CFO testified that
he did not choose appellant Pulley for the position because he seemed to
be a �follower� and lacked initiative. Furthermore, appellant Pulley did
not espouse the agency's philosophy of customer service, which included
personal accountability. In sum, although appellant was a technical
expert, he was lacking in service skills. Instead, Selectee 2 had good
communication skills, and shared his vision of customer service for
the organization
Pretext Arguments
In order to show that the agency's reasons for its actions were pretext
for discrimination, appellants argued that the list compiled by the CFO
is evidence of a bias held by the CFO against Mormons. The AJ found
that although the list was suspect, it does not show in and of itself,
that the CFO was motivated to discriminate against Mormons. Furthermore,
the AJ noted that the CFO denied using the list for selection purposes,
and also noted that the CFO had selected a Mormon, albeit non-practicing,
for another position.
Furthermore, the AJ rejected appellants arguments that the selectees were
preselected for the positions because they are females. Specifically,
appellant Minton argued that an Affirmative Action Report indicates
that on November 15, 1992, a female was selected for the position of
Supervisory Accountant. In fact, the position remained vacant until
the selection at issue. Appellant Minton claimed that the Affirmative
Action Report was evidence that the agency intended to place a woman
into that position. However, the AJ noted that the report was completed
while the previous Acting CFO was in his position, and before the CFO
had arrived at the facility. As such, the AJ found that the report
does not support appellant's contention that the CFO wanted to hire a
woman into the position. Likewise, the AJ did not find that appellant
Pulley's arguments that Selectee 2 was preselected for the position was
supported by the record.
Appellant Minton also testified that the manner in which the vacancy
announcement was issued was suspect, and averred that the reasoning for
such was due to the agency's desire to place a woman into the position.
Specifically, appellant Minton testified that the Supervisory Accountant
vacancy announcement was initially issued before the CFO arrived at the
facility. Although he applied for the position at that time, the vacancy
announcement was later canceled when the CFO arrived at the facility.
In response to appellant's contention, the CFO explained that he canceled
the initial vacancy announcement upon his arrival in order for him to
gain some knowledge of the candidates' management styles in order to
make the proper decision. He testified that after working as the CFO
for some months, he reissued the vacancy announcement, which is the
subject of the instant appeal.
Despite the AJ's acknowledgment that subjective factors were used in
the selections, the AJ noted that such is not discriminatory, per se.
With respect to appellant Minton, the AJ noted that prior to the CFO's
arrival, after the first (later canceled) vacancy announcement was issued,
a rating and ranking panel was established by the prior Acting CFO.
The AJ found that three of the four panel members did not list appellant
Minton as one of the finalists for the position. Therefore, although
appellant Minton testified that he was objectively more qualified than
Selectee 1, such was not a finding of the panel members.
In sum, the AJ found that appellants had failed to prove, by a
preponderance of the evidence, that the agency's reasons for its actions
were pretext for discrimination. Rather, the AJ found that the CFO's
judgements were based upon his perception of the applicants' abilities
to move the office into a more customer service oriented direction.
On October 1 and October 11, 1996, the AJ issued RD's of no
discrimination. On October 28, and November 1, 1996, the agency issued
final decisions adopting the AJ's RDs. It is from these decisions that
appellants now appeal.
Appellants, through their attorney, contend on appeal that the AJ erred
when he found that there were no material facts in dispute. Specifically,
appellants argued that there were disputed facts as to whether there was
a �Mormon problem� at the facility. Furthermore, a dispute existed as
to whether the CFO chose the selectees for legitimate purposes or not,
as the evidence showed that subjective factors were used.
After a careful review of the record, the Commission finds that the
AJ's RDs summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Although we agree with the AJ that
the CFO's compilation of the list in question is suspect, we find
insufficient evidence in the record that it was in fact used in the
selection process, or generated with an intent to discriminate against
Mormons. As appellants have failed to show that a link existed between
the list and their nonselections, we find that the list may have been
"discrimination in the air," and not discrimination "brought to ground"
and visited upon appellants. See EEOC Notice No. 915.002 (July 14,
1992), Revised Enforcement Guidance on Recent Developments in Disparate
Treatment Theory at III.A. We further note that there is evidence in
the record that there was proselytizing in the office. In that case,
the need for the list likely became inconsequential, as those who were
affiliated with the Latter Day Saints were known to the employees of
the office. Indeed, the CFO acknowledged that the first day he met
appellant Pulley in October 1992, appellant Pulley spoke to him about
his religion. Although appellants argue that the list is indicative of
a bias against Mormons, appellants do not support their allegations with
a concrete effect on a term, condition or privilege of employment.
Appellants have failed to provide sufficient evidence that the SO's
reasons for his selections, namely, management style, was pretext for
discrimination. We find that appellant Minton's arguments with respect
to the cancellation of the vacancy announcement are insufficient to
sustain his burden of demonstrating pretext. By reissuing the vacancy
announcement, the CFO only increased appellant Minton's chances for
selection, as he allowed appellant Minton an opportunity to discuss his
management philosophy.
We find sufficient evidence in the record to support the AJ's findings of
no discrimination. Therefore, after a careful review of the record,
including appellant's contentions on appeal, and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
August 26, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations