0120070418
03-25-2009
Thomas W. Baughman, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Thomas W. Baughman,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120070418
Agency No. FSA200500163
Hearing No. 570-2006-00097X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 11, 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. Complainant
alleged that the agency discriminated against him, on the bases of
race (Caucasian), sex (male), color (white), and in reprisal for prior
protected EEO activity when on or about February 23, 2005, he learned
that he was not selected for the position of Equal Employment Manager,
GS-0260-15 which was advertised under Vacancy Announcement Number
UF185474TC.
The record shows that on January 20, 2004, the Farm Services Agency (FSA),
which is a component of the Department of Agriculture, posted a vacancy
announcement for an EEO Manager position (Director of the Office of Civil
Rights or Civil Rights Director). Complainant was one of approximately
13 individuals referred to on the Merit Promotion Certificate for the
GS-15 Civil Rights Director position. Subsequently, complainant was
interviewed by an interview panel which consisted of three panel members
and an EEO observer. The panel members asked each applicant the same
eight questions and assigned a ranking of either "high," "medium," or
"low" based upon each applicant's interview and application packet.
Complainant was one of 10 candidates who were ranked "low" by the panel.
None of the applicants who were interviewed were ranked "high." Three of
the candidates were ranked "medium." The record also shows that there
were two non-competitive candidates who were ranked highly qualified, one
of whom was an African-American male (C1). The selecting official (SO)
explained that none of the applicants (competitive or non-competitive)
was selected for the position because the panel members did not recommend
any of the applicants for selection.
SO explained that the individual then serving as the Acting Civil
Rights Director did not want to remain in the detail position because
he was not being paid the higher salary that went with the position.
SO testified that, consequently, he approached several individuals in
various Civil Rights offices within the Department of Agriculture to
inquire whether they could recommend any individuals to temporarily
fill the Civil Rights Director position on a detail while the process
to permanently fill the position was ongoing. SO testified that one
individual (SE), who was a GS-15 Division Director within the Office of
Civil Rights, was highly recommended by several people to temporarily
serve as Acting Civil Rights Director. SO further testified that he
then spoke in detail with SE to learn more about him since he did not
know SE at the time. SO was satisfied from his conversation with SE that
SE could step in at least on a temporary detail. However, SO still had
some doubts because he (SO) did not have any real experience with SE.
Several months later, in or about September of 2004, after SO had had
an opportunity to observe SE in the position for a few months, he found
that SE had adequate management experience to perform the position and
was performing well. SO testified because the Office of Civil Rights
was in turmoil he was looking to fill the position at issue with a
person who possessed strong management skills. Accordingly, management
experience was far more important to SO than program experience in his
assessment of the qualifications for the Director position. SO noted
that there were technicians in the Office of Civil Rights who had both
Title VI and Title VII knowledge and, accordingly, those technicians
could compensate for any such knowledge that a Director with strong
management skills might lack. SO also testified that, because SE was
performing well, he decided to reassign him into the position in order to
avoid the long drawn out process of reposting the vacancy announcement,
waiting for Human Resources to receive applications and qualify them;
in short, go through the entire selection process again. Accordingly,
SE was permanently reassigned into the Director of the Office of Civil
Rights position on November 28, 2004. SO testified that his decision
not to select complainant, as well as his decision to place SE into the
position at issue, was not motivated in any way by complainant's or SE's
race or gender.
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.
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, 143 (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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Following a hearing, the Administrative Judge (AJ) set forth a thoroughly
detailed decision explaining the bases for his conclusion that complainant
did not prove by a preponderance of the evidence that discrimination
occurred. Without discussing each point herein, we find substantial
evidence in the record to support the AJ's conclusions and note that
the AJ made numerous credibility findings which concluded that SO was
a highly credible witness. Moreover, we agree with the AJ's conclusion
that if SO's intent had been to select an African-American man to fill
the position at issue, then it would have been a simple matter for
SO to have selected C1 (African-American, male) to fill the position.
The record shows that C1 was rated highly qualified. Moreover, C1 had
served as a Civil Rights Director in another component of the agency for
one year, so he clearly had the requisite experience. However, SO did
not select him. The AJ concluded that SO's decision not to select C1
makes his testimony with respect to wanting management experience all
the more credible because SO knew that C1 was not well-regarded as a
manager and SO had stated that he wanted a strong manager.
The AJ also addressed in detail the evidence presented by complainant
in support of pretext. Complainant presented, inter alia, evidence
of historical or statistical hiring data supported by anecdotal
testimony which reflects a disproportionate number of minorities and,
in particular, African-Americans to the position of Director of the
Office of Civil Rights. However, even if we conclude that any of the
prior hiring decisions of minority applicants were likely motivated by
race, we agree with the AJ's conclusion herein that in this particular
case the preponderance of the evidence does not support a finding of
discrimination against complainant.1 Moreover, we note that the record
is devoid of evidence of reprisal.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal,2 it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
March 25, 2009
Date
1 We note that there is insufficient evidence in the record to conclude
that any of the responsible management officials in the present selection
decision were involved in any of the prior hiring decisions.
2 We note that complainant submitted well-presented and thorough arguments
on appeal. Assuming, arguendo, that complainant's arguments related to
the statistical/historical hiring data and the alleged failures in the
application process have merit, we nonetheless find such information
insufficient to prove racial animus on the part of any selecting or
interviewing official. In addition, contrary to complainant's assertions
on appeal, we find that the AJ's credibility findings are supported by
substantial evidence in the record.
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0120070418
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013