0120072088
08-29-2008
Willie H. Merrell, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Willie H. Merrell,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072088
Agency No. 200L-0520-2006102136
Hearing No. 420-2007-00006X
DECISION
Complainant filed an appeal with this Commission from the March 5,
2007 agency decision finding no discrimination.
Complainant, a grade level GS-7 Supply Technician, alleged that the
agency discriminated against him on the bases of race (Black), disability
(sarcoidosis) , and age (62) when on March 7, 2006, he was notified
that he had not been selected for the position of a GS-9 Lead Inventory
Management Specialist.
After completion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Complainant's case was remanded
to the agency by the AJ for issuance of a decision by the agency when
complainant failed to respond to the AJ's Scheduling Order and the
agency's motion for summary judgment. Complainant has not challenged
the AJ's cancellation of the hearing.
In its decision finding no discrimination, the agency found that
complainant had established a prima facie case of race and age
discrimination, noting that the selectee was a 55-year old Filipino.
However, the agency found that complainant failed to establish a prima
facie case of disability discrimination, noting that complainant had
not identified circumstances which would give rise to an inference of
discrimination based on disability. The agency found that complainant
failed to show that he was an individual with a disability; that
the agency knew that he had a disability; or that the sarcoidosis
substantially limited a major life activity. The agency also found that
complainant had not shown that he was treated differently than individuals
who were not disabled, noting that the selectee claimed that he was also
a disabled individual.
Regarding the nonselection, the agency determined that complainant was
one of only two applicants found qualified for the vacant position. The
agency found that while both applicants were qualified for the position,
the selectee was the better qualified candidate and noted that the
selectee had the highest score on the interview and on knowledge, skills
and abilities (KSA).
To prevail in a disparate treatment claim, 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 complainant
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).
An agency has the discretion to choose among equally qualified
candidates so long as the decision is not premised on an unlawful factor.
See Burdine, 450 U.S. at 258- 259; Mitchell v. Baldridge, 759 F.2d 80
(D.C. Cir. 1985). In nonselection cases, pretext may be found where
the complainant's qualifications are plainly superior to those of the
selectee. See Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995).
Because this is an appeal from a decision issued without a hearing,
the agency's decision is subject to a de novo review by the Commission.
29 C.F.R. � 1614.405(a).
As an initial matter, the Commission will assume for analytical purposes
only, that complainant is an individual with a disability. The Commission
finds that the agency has articulated legitimate, nondiscriminatory
reasons for not selecting complainant. Having so found, a prima facie
inquiry is not necessary. 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).
We find that complainant and the selectee, who were the only two
applicants found to be qualified for the position, were scored by three
panel members on the interview panel. The selectee received higher
combined scores on the interview questions and on his KSAs. Complainant
received an overall score of 166 and the selectee had a score of 182.
Although complainant raised concerns regarding how he was contacted
for the interview and the propriety of panel members allegedly asking
questions about complainant's retirement, complainant did not question
the scoring itself. Complainant has not shown by a preponderance of
the evidence that the agency was motivated by discriminatory animus when
the agency did not select him.
Complainant has also not shown that the agency's reasons for not
selecting him were mere pretext to hide unlawful discrimination.
The Commission finds that although complainant had trained the selectee
who had held the same position as complainant prior to his selection
and that the selectee considered complainant a mentor and stated that
complainant was more qualified than he was, complainant has not shown
that his qualifications were plainly superior to those of the selectee.
Although complainant had a lengthy employment history with the agency,
the Commission has repeatedly held that mere length of service does
not necessarily make an individual more qualified for a position.
McGettigan v. Department of the Treasury, EEOC Appeal No. 01924372
(February 24, 1993); Ford v. Department of Health and Human Services,
EEOC Appeal No. 01913521 (December 19, 1991). Further, there is no
evidence that longevity was a qualifying factor in being selected.
In sum, complainant has not shown that he had better qualifications;
that he had a better interview; or that longevity of service was a
criterion for selection. The Commission declines to second-guess the
agency's personnel decisions, absent a demonstrably discriminatory motive.
See Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982).
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional 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).
Complainant failed to carry this burden.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
August 29, 2008
__________________
Date
5
0120072088
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036