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.