0120122489
10-26-2012
Raeshaun O. Evans, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Raeshaun O. Evans,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120122489
Hearing No. 430-2011-00127X
Agency No. 2010-23524-MARAD-01
DECISION
On May 15, 2012, Complainant filed an appeal from the Agency's final action 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 accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final action.
ISSUES PRESENTED
The issues presented are: (1) whether the AJ's issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency discriminated against him on the basis of race (African-American) in connection with a non-selection.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rigger Worker, WG-5210-08 at the Agency's Maritime Administration, James River Reserve Fleet (JRRF) at Fort Eustis, Virginia. Complainant had been a Rigger Worker since 2007. Complainant's First Level Supervisor was the Tugmaster Supervisor (S1 - Caucasian).
On June 16, 2010, Complainant applied for the position of Rigger Work Leader, WL-5210-10, advertised under vacancy announcement number MARAD-2010-0068. The vacancy announcement contained the following relevant information:
* The "Summary" section stated that the position "will lead personnel consisting of Rigger/Crane Operators, Rigger Workers and Laborers, as well as perform work, in addition to providing a wide variety of rigging and deck services for vessels in the National Defense Reserve Fleet" and "is ideal for someone skilled in a wide variety of rigging and deck services working onboard a ship."
* The "Major Duties" section stated that the Rigger Work Leader: (1) provides technical and advisory services with regard to operation and maintenance of a variety of trades at the Reserve Fleet; (2) adheres to work priorities, project schedules, resources, and detailed work plans established by the supervisor, establishes deadlines, priorities and plans work assignments; and (3) is responsible for and takes an assertive approach in promoting safety programs and protecting the environment by controlling hazardous materials and reducing hazardous waste within the department.
* The "Qualifications" section stated that a candidate "must have experience and/or training of sufficient scope and quality to perform the duties of a Rigger Work Leader" and noted that applications will be rated on the following job elements: (a) ability to do the work of the position; (b) ability to lead or supervise; (c) ability to inspect; and (d) work practices.
On July 15, 2010, the Office of Human Resources (HR) referred four candidates, including Complainant and the Selectee (Caucasian), to S1 for selection.1 Based on their resumes and answers to the online assessment questionnaire,2 HR determined that the referred candidates met the qualifications for the position. Questions 6-13 of the online assessment questionnaire asked the candidates to describe their knowledge and experience in specific areas relevant to the position.
On August 4, 2010, S1 and another employee (P1 - Caucasian) interviewed the four referred candidates. S1 and P1 asked each candidate the following four questions: (i) choose a Fleet Service operation and explain how you would handle the task as the Work Leader; (ii) if you were a Work Leader, how would you handle giving orders to employees and seeing that they are carried out; (iii) as the Work Leader, you may have to fill in for S1 to do computer work (such as putting in time, email, etc.) - please describe your knowledge of computers; and (iv) as the Work Leader, what unique qualities do you think you would bring to this position. S1 and P1 each assigned a score between one and five (with five being the highest) for the candidate's response to the each of the four questions. Out of a possible 40 points, the Selectee received a score of 32 and Complainant received a score of 31. On August 9, 2010, S1 selected the Selectee for the position.
On October 4, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when he was not selected for the position of Rigger Work Leader, WL-5210-10, advertised under vacancy announcement number MARAD-2010-0068.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ granted the Agency's motion for a decision without a hearing on March 30, 2012.
In his decision, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, S1 used the candidates' interview scores and supervisory experience as determinative factors, which led him to select the Selectee and not Complainant.3 Moreover, the AJ found that Complainant failed to show that the Agency's explanations were a pretext for race discrimination. The AJ noted that Complainant's qualifications were not demonstrably superior to the Selectee's, that the Agency has the discretion to choose among equally qualified candidates, and that the Agency has greater discretion when filling management-level positions.
When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency's final action pursuant to
29 C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, Complainant requested that we reverse the AJ's decision or, in the alternative, remand the matter for a hearing. Specifically, Complainant argued that the Agency failed to articulate a legitimate, nondiscriminatory reason for its actions. In addition, Complainant argued that the Selectee was not qualified for the position because he had no experience as a Rigger Worker or a Rigger Work Leader. Further, Complainant argued that he was more qualified than the Selectee because he had seven years of experience as a Rigger Worker and had been detailed to the Rigger Work Leader position on multiple occasions. Finally, Complainant argued that S1 manipulated the selection process, by preparing interview questions that did not focus on rigging, in order to select the Selectee over him and the other two African-American candidates.
In opposition, the Agency requested that we affirm the AJ's decision. Specifically, the Agency argued that S1 chose the Selectee based on the total interview scores and his assessment of the candidates' leadership capabilities. In addition, the Agency argued that the vacancy announcement did not require specialized experience and training as a Rigger, that the Selectee had experience in rigging as described in his answers to Questions 6-13 of the online assessment questionnaire, and that HR had deemed the Selectee to have the requisite experience and qualifications for the position. Finally, the Agency argued that S1's emphasis on leadership/supervisory capability was appropriate and that the Selectee had more work leader/supervisor experience.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.B. (Nov. 9, 1999) (providing that both the AJ's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, at Ch. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
AJ's Issuance of a Decision Without a Hearing
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond, and he had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
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, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of race discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's non-selection. Specifically, S1 averred that the Selectee was better qualified for the position because he had more experience as a leader. We find that S1's affidavit testimony regarding the Selectee's leadership experience constitutes a specific, clear, and individualized explanation for why Complainant was not selected. See Lorenzo v. Dep't of Def., EEOC Request No. 05950931 (Nov. 6, 1997).
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race discrimination. Upon review, we find that Complainant failed to show that the Agency's reasons were pretextual.
First, Complainant has not shown that the Selectee's lack of experience as a Rigger Worker or a Rigger Work Leader meant that he was unqualified for the position. Specifically, we note that nowhere in the vacancy announcement does it require a candidate to have experience in one of those positions. In addition, we note that, in his responses to Questions 6-13 of the online assessment questionnaire, the Selectee described his knowledge and experience in specific areas relevant to the position. Further, we note that HR determined, after reviewing the Selectee's resume and online assessment questionnaire, that he was qualified for the position.
Second, Complainant has not shown that S1 inappropriately considered the candidates' leadership experience, or that he had more leadership experience than the Selectee. Specifically, the vacancy announcement reflects that leadership is an important part of the Rigger Work Leader position. The vacancy announcement explicitly stated that the Rigger Work Leader will lead personnel and that the candidates will be rated on the ability to lead or supervise. In addition, the candidates' applications reflect that the Selectee had more leadership experience than Complainant. The Selectee's leadership experience consisted of 400 hours of supervisory experience and 300 hours of work leader experience (all on details), whereas Complainant's leadership experience consisted of a one-month detail (approximately 160 hours) to the Rigger Work Leader position.4
Third, Complainant has not shown that S1 manipulated the selection process in order to select the Selectee over him and the other two African-American candidates. We find no evidence, beyond Complainant's bare assertions, that S1 intentionally prepared the interview questions to favor the Selectee. Although Complainant felt that the interview questions should have focused more on rigging, we find that the interview questions' focus on leadership was job related and not indicative of discrimination.
In non-selection cases, a complainant may establish pretext by showing that his qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). We find that Complainant has not made such a showing. Complainant's application reflects that he: (a) was a WG-08 Rigger Worker; (b) had approximately 160 hours of work leader/supervisory experience; and (c) had approximately six years of work experience at the JRRF. The Selectee's application reflects that he: (a) was a WG-10 Marine Machine Mechanic; (b) had 700 hours of work leader/supervisory experience; and (c) had approximately 29 years of work experience at the JRRF. Based on the above, we find that Complainant failed to show that his qualifications are "plainly superior."
We note that Complainant disagreed with S1's overall assessment of his qualifications and the Selectee's qualifications, particularly as to the value of his experience as a Rigger Worker versus the Selectee's experience as a leader. However, we decline to substitute our judgment for that of the selecting official. When choosing among highly qualified candidates for a position, an employer has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, we find that Complainant failed to show that the Agency's reasons for his non-selection were a pretext for race discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action.
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 (November 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
___10/26/12_______________
Date
1 The other two candidates were African-American.
2 The application documents did not contain any information about a candidate's race.
3 In another part of his analysis, the AJ also stated that the Agency's legitimate, nondiscriminatory reason was that "it selected a better qualified candidate."
4 Complainant averred that he was detailed to the Rigger Work Leader position multiple times. Complainant's application, however, only listed one detail to the Rigger Work Leader position.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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