01a50233
03-31-2005
William H. Windes, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
William H. Windes v. Department of Agriculture
01A50233
3/31/05
.
William H. Windes,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A50233
Agency No. 990461
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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 decision.
I. BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Claims Examiner, GS-0990-12, at the agency's Farm Service Agency,
Kansas City Commodity Office (KCCO) in Kansas City, Missouri. Complainant
sought EEO counseling and subsequently filed a formal complaint on March
10, 1999, alleging that he was discriminated against on the basis of sex
(male) when, on April 9, 1998, he was not selected for the position of
Management Analyst, GS-0343-13, advertised under Vacancy Announcement
Number KCCO-08.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded complainant failed to rebut its
nondiscriminatory explanation for not selecting him. According to the
agency, complainant was not selected because his experience was not as
broad and his writing not as good as the selectee's. The agency also
noted that the selectee's previous position, Administrative Specialist,
was more related to the vacancy than complainant's.
On appeal, complainant contends that the agency's nondiscriminatory
explanation was pretext to cover up a discriminatory motive. He notes,
among other things, that the selecting official lauded the selectee's
writing ability despite her application containing approximately
200 typographical and grammatical errors identified by complainant.
Complainant also wonders how the selecting official (SO) could conclude
that complainant's writing is not outstanding when the SO never saw any
of his writing. Complainant also contends that the SO deviated from
proper selection procedures in hiring the selectee.
II. LEGAL STANDARD
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case
will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). To ultimately prevail, complainant must prove, by a preponderance
of the evidence, that the agency's explanation is pretextual. 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); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The decision on an appeal from an agency's final action shall be based on
a de novo review of the agency's findings of fact and conclusions of law.
29 C.F.R. � 1614.405.
III. ANALYSIS
After careful review of the record, we find that complainant failed to
present evidence that, more likely than not, the agency did not select
him because of his sex.
The prima facie inquiry may be dispensed with in this case 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). As noted above, the
agency stated that the selectee was more qualified than complainant.
Specifically, the SO stated that her experience and writing ability
were superior. To ultimately prevail, complainant must prove, by
a preponderance of the evidence, that this 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).
We find that the record lacks sufficient evidence showing that the SO's
decision was based on the selectee being a woman. As the trier of fact,
we may consider the evidence establishing the plaintiff's prima facie case
on the issue of whether the defendant's explanation is pretextual, Reeves,
supra, at 143 (citing Burdine, supra, at 255, n. 10), but in this case
it is insufficient to prove the selector had a discriminatory intent.
Very little in the record indicates that the SO selected the selectee
because of her sex. Complainant can show that he is a man, that he was
not selected, and that the selectee was a woman. Complainant and several
other applicants also averred that women are promoted more readily at
the agency than men.
A review of statistics on recent promotions at the agency, however,
reveals that women are not promoted at a higher rate than men.
The vacancy in question was a GS-13 position. The record shows that,
at the approximate time of complainant's non-selection, there were more
males than females employed from the GS-12 to the GS-15 level at the KCCO.
Report of Investigation (ROI), Exhibit 5; see also Investigator's Summary
at 11. In addition, more males were promoted into GS-11 through GS-15
level positions during that approximate time period. ROI, Exhibit 16;
see also Investigator's Summary at 11. The comparative rate of promotion
between the sexes, moreover, corresponds relatively closely to the ratio
of males to females employed in positions at the GS-11 level or higher
at the KCCO. ROI, Exhibit 5.
Complainant argues that the selectee was pre-selected for the position
despite being less qualified than he. He also suggests that the position
was created by the SO with her in mind. Evidence of preselection alone,
however, does not establish discrimination. See Cornelius v. USPS,
EEOC Request No. 05890238 (July 14, 1989); see also Lacey v. Department
of the Army, EEOC Appeal No. 01976060 (October 27, 1999).
The only proven fact that goes to show the agency's motive was
discriminatory is the fact that complainant is of a different sex than
the selectee. We find this insufficient evidence to show that, more
likely than not, complainant was not selected because of his sex. Because
the burden of proof rests on complainant to prove discrimination and
he failed to request a hearing in order to further develop the record,
we find in favor of the agency.
IV. CONCLUSION
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 FAD finding
no discrimination.
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
_____3/31/05_____________
Date