01A11704
10-19-2001
Willie Minor, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Willie Minor v. Department of Defense
01A11704
October 19, 2001
.
Willie Minor,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 01A11704
Agency No. XL-99-038
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. Complainant alleged that he was discriminated
against on the bases of race (African American), color (black), and
retaliation (prior EEO activity) when he was not selected for the
position of Industrial Property Management Specialist, GS-1103-12,
at the agency's PEMCO Aeroplex facility, Birmingham, AL.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Quality Assurance Specialist, GS-1910-11, at the PEMCO
Aeroplex facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on August 31, 1999. 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.
Complainant applied and was considered for the position at issue,
which was advertised as a temporary promotion opportunity not to exceed
three years.
In its FAD, the agency acknowledged that complainant established a
prima facie case of disparate treatment discrimination. However, the
FAD found that the agency articulated a legitimate, nondiscriminatory
reason for its action, i.e., the Selectee (White) had more exposure to
property administration tasks than the other candidates and relying on
the Selectee's experience as portrayed in the application package and his
responses during the interview, as set forth by the Selecting Official
(SO). The FAD concluded that since the agency articulated a legitimate,
nondiscriminatory reason for its action, it was unnecessary to address
whether complainant established a prima facie case of reprisal. Finally,
the FAD found that complainant did not show the agency's articulated
reason to be pretext masking discrimination, indicating that neither
the Selectee's nor complainant's qualifications for the position were
demonstrably superior to the other's. Accordingly, the FAD concluded
that complainant was not discriminated against as alleged.
On appeal, complainant contends that the Selectee was wrongly given credit
for performing property administration duties, emphasizing that there
is no documentation to substantiate these claims. Complainant also
emphasizes his present duties, including property administration.
Complainant further disputes comments by his supervisor (White)
that he was an extremist and could not get along with the contractor
personnel.<1> Complainant additionally emphasizes the breadth of his
job responsibilities, requiring him to work with high level officials
all over the world, and the awards he has received over the years.
Finally, complainant points out that he is working in Alabama, and that
Black employees know how difficult it is to get a promotion over a White
employee especially at this facility.
ANALYSIS AND FINDINGS
Disparate Treatment Discrimination
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A complainant 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 reason was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the complainant to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of discrimination in the
nonselection context by showing that: (1) he is a member of a protected
class; (2) he was qualified for the position; (3) he was not selected for
the position; and (4) he was accorded treatment different from that given
to persons otherwise similarly situated who are members of his protected
group. Williams v. Department of Education, EEOC Request No. 05970561
(August 6, 1998). Complainant may also set forth evidence of acts from
which, if otherwise unexplained, an inference of discrimination can
be drawn. Furnco, 438 U.S. at 576.
The Commission notes that in nonselection cases, pretext may be found
where the complainant's qualifications are demonstrably superior to the
selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). An
employer has the discretion to choose among equally qualified candidates.
Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981).
Both complainant and the Selectee had been Quality Assurance Specialists
since 1986 and both were experienced in working in an aircraft
maintenance environment.<2> FAD at 4. Neither were experienced
property administrators. Id. Neither had DAWIA certification in the
Industrial/Contract Property Management career field. Id. Both had
experience in performing plant clearances and investigating damages to
Government property. Id. at 4-5. The FAD found that the Selectee and
complainant had essentially the same background, both had some exposure
to property administration functions, and that neither candidate's
qualifications for the position were demonstrably superior to the other's.
Id. at 5.
With respect to complainant's property administration allegation on
appeal, the FAD essentially found that the Selectee and complainant had
comparable property administration experience in their work as Quality
Assurance Specialists. Id. However, it appears that the Selectee also
claimed that in the 1970s he gained property management experience as a
non-commissioned officer in charge of a warehouse while serving in the
United States Air Force. It is this claim which complainant has disputed.
However, the FAD found that whether or not Selectee was in charge of a
warehouse in the 1970s was not a �make or break� factor to either the
Selectee's qualifications or to a demonstration that the Selectee's
qualifications were �observably inferior� to complainant's. Id. at 5.
Complainant's emphasis on his present duties is irrelevant to the
selection at issue, which was made in 1999. The focus must be on
complainant's and the Selectee's qualifications at the time of the
selection. Complainant does not argue that his qualifications were
demonstrably superior to the Selectee's at the time of the selection.
With respect to the comment of complainant's supervisor, that complainant
was allegedly an extremist, the FAD did not rely on or reference that
comment in its decision. The FAD did reference various comments of
complainant's supervisor to the effect that complainant did not
work well with contractor personnel in getting compliance and had an
inability to work with people to gain win-win solutions. FAD at 6.
However, the FAD found that there was no evidence his supervisor's
comments impacted the SO's decision. Id. at 6. Complainant, on appeal,
did not dispute that finding. Indeed, the FAD also found that the SO,
after the interviews,
had ranked the Selectee (first) above complainant (seventh), and that it
was only after the interviews that complainant's supervisor was consulted.
Id. at 7. The SO further stated that she gave virtually no weight to
the supervisor's comments regarding complainant. Id.
An employer has the discretion to determine how best to manage its
operations and may make decisions on any basis except a basis that is
unlawful under the discrimination statutes. Furnco, supra; Nix v. WLCY
Radio/Rayhall Communications, 738 F.2d 1181 (11th Cir. 1984). An employer
is entitled to make its own business judgments. The reasonableness
of the employer's decision may of course be probative of whether it is
pretext. The trier of fact must understand that the focus is to be on
the employer's motivation, not its business judgment. Loeb v. Textron,
Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). While complainant points
out that he is working in Alabama, and that Black employees know how
difficult it is to get a promotion over a White person especially at
this facility, he gives no support his allegation.
Finally, even assuming arguendo that the agency's proffered reasons were
false, the Commission must nevertheless be persuaded that more likely
than not, there was a discriminatory motive for the agency's action.
Notwithstanding complainant's evidence, he has not met his burden to
prove by a preponderance of the evidence that the real reason for the
agency's challenged action was his race or color.
Reprisal
In general, claims alleging reprisal are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973). See Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt, and Coffman
v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20,
1997), complainant may establish a prima facie case of reprisal by
showing that: (1) he engaged in a protected activity; (2) the agency
was aware of his protected activity;<3> (3) subsequently, he was
subjected to adverse treatment by the agency; and (4) a nexus exists
between the protected activity and the adverse action.<4> The causal
connection may be shown by evidence that the adverse action followed
the protected activity within such a period of time and in such a manner
that a reprisal motive may be inferred. Simens v. Department of Justice,
EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
As previously discussed, the agency articulated a legitimate,
nondiscriminatory reason for its action. Complainant has not shown
pretext.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, we AFFIRM the FAD.
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
October 19, 2001
Date
1 Complainant's supervisor also supervised the Selectee and ranked the
Selectee highest on his ability to work well with people and on his past
performance as a self starter.
2 At the time of application, Selectee was also a GS-1910-11.
3 The FAD noted that the SO stated she was not aware of complainant's
previous protected activity and that it was never brought to her attention
during the selection process. FAD at 3 n.3. The FAD further stated
that complainant did not dispute the SO's statement. Id.
4 The FAD found that since the agency established a legitimate,
nondiscriminatory reason for its action, there was no need for it to
make an inquiry with respect to the fourth prong. FAD at 3 n.3.