0120093700
02-23-2010
William H. Harrison, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (Bureau of Land Management), Agency.
William H. Harrison,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(Bureau of Land Management),
Agency.
Appeal No. 0120093700
Agency No. BLM080022
DECISION
INTRODUCTION
On August 27, 2009, complainant filed an appeal from the agency's August
11, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
an Employee Concern Specialist, GS-0301-13, at the agency's facility
in Valdez, Alaska. He applied for the position of Equal Employment
Manager, GS-0260-13, at the agency's facility in Anchorage, Alaska,
under Vacancy Announcement AK-Merit-2007-0196. The record indicates
that complainant's name was listed among the Certificate of Eligibles.
Complainant was interviewed for the position by the Selecting Official
(SO) and an EEO specialist. The SO chose the selectee (Selectee)
(female, Caucasian, white, born in 1956). Complainant believed that
he was discriminated against. As such, he contacted an EEO Counselor
on October 23, 2007. When the matter was not resolved informally,
on January 28, 2008, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American),
sex (male), color (Black), and age (DOB: September 20, 1953) when,
on October 2, 2007, he was not selected for the position at issue.
At the conclusion of the investigation, 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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
The agency issued its decision finding no discrimination. Specifically,
the agency found that it provided legitimate, non-discriminatory reasons
for its action, namely that the SO indicated her reasons for selecting
the Selectee over complainant. The agency determined that complainant
failed to show that the agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
This appeal followed. On appeal, complainant asserts that the agency
improperly concluded that complainant was not subjected to discrimination.
Complainant argues that the agency's final decision relies solely on the
testimony of the SO and the EEO specialist. Complainant claims that
had the agency looked at the entire record, it would have seen that
complainant, not the Selectee was the best candidate for the position.
Complainant indicates that he had superior supervisory experience in
the positions he held. Further, complainant highlights his experience
with complaints of discrimination from other employees which he was
personally involved with their processing. Complainant argues that
the agency is corrupt in order to maintain an "apartheid management."
As such, he was discriminated against when they did not select him for
the Equal Employment Manager position.
The agency requests that we affirm its finding of no discrimination.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, 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 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, 120 S.Ct. 2097 (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).
Upon review of the record, we find that the agency articulated legitimate,
non-discriminatory reasons for its action. The SO indicated that
complainant was among the top applicants for the position in question and
was interviewed for it. However, the SO noted that complainant did not
perform well during the interview. The SO did not find his answers to
respond directly to her questions. Further, she noted that he lacked
substantial experience in Alternative Dispute Resolution (ADR) and
that some of his experience was not current. The SO's statements about
complainant's performance during the interviewed were echoed by the EEO
specialist who was also present at the interview. The EEO specialist also
noted complainant's performance during the interview placed him towards
the bottom of their list of applicants they interviewed. As for the
Selectee, the SO noted that her performance during the interview placed
her among the top three to four candidates. Further, the SO stated that
the Selectee had more current and relevant experience in such areas as
MD-715 reporting to EEOC and outreach experience. As such, the SO and
the EEO specialist believed that the Selectee was more qualified than
complainant for the position.
Finding that the agency has articulated legitimate, non-discriminatory
reasons for its action, the burden shifts to complainant to establish that
the reasons were pretext for discrimination. Complainant asserted that
the agency maintained an "apartheid management" by preventing people
of color into management positions within the agency. Complainant
claimed that the statements by the SO and the EEO specialists were
false and misleading. He argued that he was the superior candidate
for the position. Upon review of the record, we find that complainant
has provided bald assertions and failed to substantiate his claims
of discrimination. As such, we conclude that complainant failed to
establish that the non-selection was discriminatory.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final decision finding no discrimination.
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
February 23, 2010
__________________
Date
2
0120093700
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093700