William S. Scurlock, Complainant,v.Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity CommissionMar 22, 2005
01a51129 (E.E.O.C. Mar. 22, 2005)

01a51129

03-22-2005

William S. Scurlock, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.


William S. Scurlock v. Federal Deposit Insurance Corporation

01A51129

March 22, 2005

.

William S. Scurlock,

Complainant,

v.

Donald E. Powell,

Chairman,

Federal Deposit Insurance Corporation,

Agency.

Appeal No. 01A51129

Agency No. FDICEO-040011

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination in

violation of the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405.

During the relevant time, complainant was employed as a Bank Examiner,

CG-570-12, at the agency's Division of Supervision and Consumer Protection

(DSC) in Birmingham, Alabama. Complainant filed a formal complaint

on December 29, 2003, alleging that he was discriminated against on the

basis of age (D.O.B. 9/30/52) when:

on October 31, 2003, he was informed of his non-selection for the

Case Manager position in the Division of Supervision and Consumer

Protection, Memphis Area Office, Memphis, Tennessee, advertised as

Vacancy Announcement 2003-DAL-B2336, CG-0570-13/14.

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. Complainant

requested that the agency issue a final decision.

In its FAD, dated October 4, 2004, the agency found no discrimination.

The agency found that complainant established a prima facie case

of age discrimination. However, the agency determined that it had

articulated legitimate, non-discriminatory reasons for its non-selection

of complainant. Specifically, the agency found that the two selectees

for the Case Manager positions were better qualified than complainant.<1>

Further, the agency found that complainant failed to present any evidence

which demonstrated that management's articulated reason for its actions

was a pretext for discrimination.

On appeal, complainant contends that communication skills �are the least

of the criteria for the selection of a case manager, as experience

in examining a bank and writing reports of examination are the most

important.� Complainant further states that a case manager's role is

to manage portfolio of banks, and that �little time is spend in oral

communication in relation to a case manager's total work time.�

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, she must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that

a prohibited consideration was a factor in the adverse employment

action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to

the agency to articulate a legitimate, nondiscriminatory reason for

its actions. See Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). Once the agency has met its burden, the

complainant bears the ultimate responsibility to persuade the fact finder

by a preponderance of the evidence that the agency acted on the basis of

a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The Commission finds that the agency articulated a legitimate,

non-discriminatory reason for its employment action. The agency

found that eight candidates, including complainant, were identified as

being qualified for the two positions of Case Manager, CG 0570-13/14.

The agency also found that one candidate withdrew his name from further

consideration for the subject positions. The record contains an

affidavit from the Selecting Official (SO). Therein, the SO stated

that she established a panel of three members to interview all seven

candidates, including complainant. The SO stated that the panel reviewed

all of the candidates' applications and performance evaluations; conducted

the questioning and grading of the candidates (excellent, good or fair);

and made a recommendation to her. The SO stated that the panel submitted

a list of the top four candidates to her with a recommendation of the

two selectees that were first and second on the panel's recommendation,

not in complainant's protected class, for the two subject positions.

The SO stated that she concurred with the panel's recommendation and

selected the panel's first and second recommendations. The SO stated

that after she made the selections, she sent the ancillary paperwork to

the Approving Official (AO) for his concurrence. The SO stated that at

the time of the selections, she was not aware of complainant's age.

The record also contains an affidavit from one of the three panelists

(P1). Therein, the P1 stated that the skills necessary to be

successful as a Case Manager are broader than those of a Bank Examiner.

The P1 further stated �primary among these would be their ability to

communicate well and establish a good rapport and working relationships

with many constituencies.� The P1 stated that complainant's responses

and position on questions expressly dealing with his ability to be an

effective communicator and establish a professional rapport with other

regulators were not viewed favorably.

The record contains an affidavit from a second panelist (P2). Therein,

the P2 stated that during the interview process complainant �had

a difficult time responding to the questions posed to him.� The P2

further stated that complainant lacked the ability to be �an effective

communicator� for the subject position.

The record contains an affidavit from the AO. Therein, the AO stated that

he concurred with the SO's decision to select the panel's first and second

recommendations. The AO acknowledged that complainant was a �viable

candidate;� but stated that the two selectees had broader backgrounds

than complainant. The AO further stated that the two selectees performed

�better� than complainant during the interview process. The AO stated

that one of the two selectees (S1) received an interview score on his

responses of �4-Good and 1-Fair� while the other selectee (S2) received

an interview score on her responses of �1-Excellent and 4-Good.� The AO

stated that complainant received an interview score on his responses of

�3-Good and 2-Fair.�

The AO stated that while S1 and complainant possessed similar qualities

in general, that S1 was considered to be more qualified based on his

�diverse experience, along with his history of performing his Acting

Case Manager details on an independent basis, and better job interview

results than [Complainant].� The AO stated that S2's feedback from her

participation on the DSC Process Redesign IV initiative �was considered

outstanding, highlighting her strong initiative, responsibility, and

accountability traits.� The AO stated that the S2 was �also cited for

strong communication skills which were validated by her very favorable

job interview results.�

Regarding complainant's argument that oral communication was the least of

the criteria for the selection of the subject positions, we note that the

record contains a copy of the Vacancy Announcement Number 2003-DAL-B2336.

We further note that a review of the announcement reveals that one of

the five quality ranking factors is skill in oral presentations.

We find that complainant has not demonstrated that the agency's

articulated reasons for the non-selections were a pretext for

discrimination.

Accordingly, the agency's decision finding no discrimination is AFFIRMED.

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 22, 2005

__________________

Date

1The record reveals that while the subject

vacancy announcement indicated only one vacancy, the agency selected

two candidates for the Case Manager positions.