0120090641
03-24-2011
Donald DePaul, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Donald DePaul,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120090641
Hearing No. 440-2008-00074X
Agency No. P-2007-0262
DECISION
On December 2, 2008, Complainant filed an appeal from the Agency’s
October 30, 2008 final order concerning his equal employment opportunity
(EEO) complaint alleging 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 Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Correctional Officer, GS-7, at the Agency’s Metropolitan
Correctional Center in Chicago, Illinois (MCC-Chicago). On December 16,
2006, the Agency announced four vacancies for Senior Officer Specialist,
GS-8, positions at MCC-Chicago through Vacancy Announcement 07-CCC-01.
Complainant had applied previously under a cancelled vacancy announcement,
but was considered when the Agency decided to include applications
from the prior announcement. The Personnel Department reviewed the
applications and conducted qualification assessments. They then assigned
numerical scores based on the information provided in the applications.
The Personnel Department forwarded the scores to the Merit Promotion Board
who narrowed the applicant pool to the nine best qualified candidates.
The Board forwarded the best qualified list to the selecting official
(SO) who selected five candidates from the list. Complainant made the
best qualified list, but was not selected.
On March 18, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of race (Caucasian) when, on
January 5, 2007, he was not selected for a GS-8 Senior Officer Specialist
position at the Metropolitan Correctional Center in Chicago, Illinois.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ held a hearing on
September 5, 2008, and issued a decision on September 11, 2008.
In his decision, initially, the AJ determined that Complainant had
established a prima facie case of discrimination as Complainant had
presented facts supporting an inference of discrimination. Next, the
AJ found that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, SO testified that he believed that
while experience was important, the factor that was more paramount to his
decision-making was an individual’s potential to be a good leader as a
GS-8 Officer. SO also stated that based on his personal observation of
the candidates who were identified on the best qualified list, the five he
selected were the best candidates based on his criteria. SO added that
prior to the selection process, he had concerns about Complainant’s
trustworthiness, integrity, and his ability to perform his duties
without close supervision. SO cited an incident in which Complainant
lied about activating his body armor which signaled to other officers
that his safety was threatened. SO affirmed that this incident weighed
against Complainant when he considered the candidates for promotion.
The AJ determined that Complainant failed to show that the Agency’s
reasons were pretextual. As a result, the AJ found that Complainant
failed to prove by a preponderance of the evidence that the Agency
subjected him to race discrimination. The Agency subsequently issued
a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ incorrectly relied on the
contradictory and subjective statements of SO. Further, Complainant
asserts that he was the superior applicant and SO’s testimony was
designed to minimize the fact that he had relevant experience that
the selectees did not. Complainant maintains that he possessed the
qualifications and qualities and was the superior candidate. Accordingly,
Complainant requests that the Commission reverse the final action.
The Agency requests that the Commission affirm the final action.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd.,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
Disparate Treatment
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 he was subjected to
an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. 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. Tx. Dep’t of Cmty. 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 Prod., Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).
Assuming arguendo that Complainant has established a prima facie case of
race discrimination, the Commission finds that the Agency has articulated
legitimate, nondiscriminatory reasons for not promoting Complainant.
SO testified that selecting a GS-8 Senior Officer was a critical
selection because he believes that they essentially run the institution.
Hr’g Tr., at 106. He added that selectees for these positions should
be responsible, trustworthy, and would act as trainers to lower-ranking
officers. Id. at 107. Further, SO detailed specifically the qualities he
found most desirable in the five selectees. Id. at 108-14. SO affirmed
that he did not select Complainant for promotion because he had concerns
regarding Complainant’s integrity and his ability to perform tasks
correctly when not directly supervised. Id. at 115. Additionally,
SO testified that Complainant was previously involved in an incident
with a visitor and was not truthful in his report of that incident.
Id. at 162. SO stated that Complainant’s actions were not what
the Agency expected from staff and Complainant’s credibility was
damaged thereafter. Id. SO stressed that while length of service
was a consideration, he ultimately based his decision on who had the
greatest potential or demonstrated the greatest performance deserving
of a promotion. Id. at 114.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec’y Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can
establish pretext is by showing that his qualifications are “plainly
superior” to those of the selectee. Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). This is simply one method and is by no means
the only way Complainant may establish pretext in nonselection cases.
In the instant case, Complainant has failed to make such a showing.
The record establishes that while Complainant may have had more
experience than the selectees for promotion, Commission precedent
has established that the number of years of experience does not
necessarily establish the best qualified applicant. See, e.g., Buck
v. Dep’t of the Treasury, EEOC Appeal No. 01A54621 (Mar. 24, 2006).
In the present matter, the record does not support Complainant’s
claim that his qualifications were more superior than the selectees’.
The record reveals that all candidates were rated similarly; however, SO
placed emphasis on the selectees’ potential to lead, ability to work
without direction, and trustworthiness. The Commission notes that an
employer has discretion to choose among equally qualified candidates,
so long as the selection is not based on unlawful criteria. In the
absence of evidence of unlawful discrimination, the Commission will not
second guess the Agency's assessment of the candidates' qualifications.
Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Here, the weight
of the evidence reveals that SO chose the selectees because he believed
they were better qualified. Complainant’s qualifications are not so
plainly superior that they undermine the Agency's explanation.
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.
Complainant failed to carry this burden. Complainant has not shown
that the selections resulted from discriminatory animus or that the
reasons articulated by the Agency for its actions were mere pretext
to hide unlawful discrimination. Accordingly, the Commission finds
that Complainant has failed to show that he was discriminated against
as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
the Commission AFFIRMS the Agency’s final order implementing the AJ's
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 24, 2011
Date
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0120090641
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090641