William H. Windes, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 31, 2005
01a50233 (E.E.O.C. Mar. 31, 2005)

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