01A21498
03-19-2003
Thurman Solomon, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Thurman Solomon v. Department of the Treasury
01A21498 and 01A21211
March 19, 2003
.
Thurman Solomon,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal Nos. 01A21498 and 01A21211
Agency No. 00-1023-T
Hearing No. 100-AO-8138X
DECISION
Complainant timely initiated an appeal (docketed as Appeal No. 01A21498)
from the agency's final order concerning his equal employment opportunity
(EEO) complaint of unlawful 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 accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that complainant, a GS-501-14 Systems Accountant at the
agency's Financial Management Consulting Staff (FMCS), Agency Services,
Financial Management Service, in Washington, D.C., filed a formal EEO
complaint alleging that the agency had discriminated against him on the
bases of sex (male) and reprisal for prior EEO activity when: (1) he was
not selected for the position of Program Manager, GS-340-15, Director,
Financial Staffing Consulting Services (FSCS); (2) he was not selected
for the position of Program Manager, GS-340-15, Director, Financial
Management Consulting Staff (FMCS); (3) during the period of November
1999 through January 2000, he was subjected to harassment relating to the
terms and conditions of his employment concerning awards and performance;
and (4) on March 2, 2000, he was issued a lowered performance rating of
�Excellent' for the 1999 rating period.
The record reflects that complainant's immediate supervisor was the
FMCS Director, and his second-line Supervisor was the Acting Agency
Commissioner of Agency Services (AAC). Regarding the FSCS position,
complainant applied, and was deemed �best qualified.� Complainant was
interviewed for the position, but was informed by the AAC that another
candidate (female) had been selected. In addition, complainant applied
for, and was interviewed for, the FMCS position, but was informed
on September 15, 1999 that another candidate (female) was selected.
On March 2, 2000, complainant received an overall performance rating of
Excellent for the 1999 evaluation period.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
Considering the nonselection for the FSCS Director position, the AJ found
that complainant established a prima facie case of sex discrimination
and retaliation regarding his nonselection. However, the AJ found
that the agency articulated a legitimate, nondiscriminatory reason for
its nonselection of complainant. The AJ noted the testimony of the AAC
that complainant was not selected for the position because his interview
responses were poor, such that he was ranked fifth out of seven applicants
for the position. AJ's Decision at 7; Investigative Report (IR) at
196-198. In addition, the AJ found that complainant failed to demonstrate
that the agency's articulated reason was a pretext for discrimination.
In so finding, the AJ noted that complainant failed to rebut the AAC's
testimony that he did not perform well during the position interview.
Further, the AJ found that other than complainant's assertion, there
was no evidence that he was more qualified for the position than was
the selectee. AJ's Decision at 7.
Regarding the nonselection for the FMCS position, the AJ again found
that complainant established a prima facie case of sex discrimination and
retaliation. The AJ then found that the agency articulated a legitimate,
nondiscriminatory reason for its nonselection. Namely, the AJ found
that the AAC stated that none of the applicants received a rating in the
�high� range during their interviews, and thus she canceled the initial
vacancy announcement. IR at 189. The AAC further stated that complainant
performed poorly in the interview, as his answers were not thought out
or concise, and he did not show leadership abilities necessary for the
position. Id. The AAC stated that she noncompetitively selected the
selectee as she was impressed with her qualifications and experience for
the position. In addition, the AAC stated that complainant lacked the
necessary supervisory and management skills for the position, as it had
been ten years since he served as a first-line supervisor. The AJ then
found that complainant failed to establish that the agency's articulated
reasons were pretexts for discrimination. AJ's Decision at 9-10. In so
finding, the AJ rejected complainant's allegations regarding his superior
qualifications for the position, his performance during the interview,
the agency's failure to follow proper selection procedures and the AAC's
animus toward males.
The AJ then considered complainant's allegations of harassment.
She initially noted that complainant amended his formal complaint to
include several instances in which he believed that he was harassed by
agency management in a manner which affected the terms and conditions
of his position, specifically concerning awards and performance.
The AJ found that based on the testimony of witnesses at the hearing,
complainant failed to demonstrate a claim of harassment. The AJ noted
that the AAC's acts which complainant alleged to be harassment were the
result of the AAC's aggressive management style. In addition, the AJ
noted that complainant's testimony that the AAC stated she was going to
�get� him was not credible, and further complainant failed to give any
specifics regarding the context of the comment. AJ's Decision at 12;
IR at 72.
As to complainant's allegations regarding the lowered performance rating
for the 1999 rating period, the AJ initially found that he failed to
establish a prima facie case of sex discrimination. In so finding,
the AJ noted that complainant failed to demonstrate that there were
any similarly situated employees not in complainant's protected groups
who were treated differently under similar circumstances. Further,
the AJ found that complainant failed to proffer any evidence which would
create an inference of sex discrimination. The AJ found that complainant
established a prima facie case of retaliation for the lowering of his
performance evaluation, but that the agency articulated legitimate,
nondiscriminatory reasons for its actions; namely, the AAC testified
that one of the agency's clients (USIA) requested that complainant be
removed from a project, and he failed to meet the agency's criteria in
his evaluation regarding target billable hours. AJ's Decision at 13;
IR at 465-466; 471-473. In addition, the AJ found that complainant
failed to demonstrate that the agency's reasons were more likely than
not pretexts for retaliation. As a result, the AJ found that complainant
failed to establish that he was discriminated against on the bases of sex
and/or retaliation on any of his allegations. The agency's final order
implemented the AJ's decision. Complainant makes no new contentions on
appeal, and the agency requests that we affirm its 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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We find that complainant failed to proffer evidence that any
of the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
sex. We discern no basis to disturb the AJ's decision. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final order.
The Commission notes that complainant filed an appeal with the Commission
(docketed as Appeal No. 01A21211) which alleges a breach of a Settlement
Agreement (SA) from February 1995 on a class complaint. The agency
responded to complainant's appeal, urging that the appeal be dismissed
as: (1) complainant lacked standing to bring the appeal as he is not a
member of the class covered by the agreement; (2) the issues in the SA
were litigated and decided by the AJ in complainant's prior complaint;
and (3) the appeal is untimely as complainant filed it more than 30
days after he became aware of the alleged breach. A review of the
SA referenced by complainant reveals that the class affected was �All
African-Americans in Grades 13-15 in the Financial Management Service.�
SA at 1. As noted by the agency, complainant is not African-American and
is thus not a member of the class affected by the SA. Nor is there any
evidence demonstrating that he is the class agent for the SA. As such,
we agree with the agency that complainant lacks standing to have the
Commission enforce the terms of the SA. In addition, we agree with the
agency's contention that the issues regarding agency interview processes
and noncompetitive selections addressed in the SA were considered by
the AJ in her decision and found to be not applicable to complainant.
See AJ's Decision at 11. As a result, for the above-stated reasons, the
Commission dismisses Appeal No. 01A21211. See 29 C.F.R. �1614.107(a)(1).
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 19, 2003
__________________
Date