01A11996
08-21-2002
William S. Clement, Complainant, v. Sean O'Keefe, Administrator, National Aeronautics and Space Administration, Agency.
William S. Clement v. National Aeronautics and Space Administration
01A11996
August 21, 2002
.
William S. Clement,
Complainant,
v.
Sean O'Keefe,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01A11996
Agency No. NCN98HQSA051
Hearing No. 100-99-7595X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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.
and 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. For the following reasons, the Commission AFFIRMS the agency's
final order.
The record reveals that, during the relevant period, complainant was
employed as a GS-343-14, Management Analyst at the agency's Business
Administration Services Division facility in Washington, D.C. The record
reflects that complainant joined the agency in 1991. In February 1998,
the agency announced multiple vacancies within the Office of Procurement
for Procurement Analysis positions in the GS-1102 series at grades GS-14
and GS-15. Forty persons, including complainant, applied. The office
rated 22 applicants as �Best Qualified.� A panel of three Office of
Procurement division directors interviewed the applicants. The panel
selected nine persons, and the selections were ratified in April 1998.
Complainant contends that three of the selectees (S1: Caucasian female,
age 36; S2: Caucasian female, age 50; S3: African American female, age 50)
did not possess the educational and training qualifications required to
be hired under the contracting series.
Complainant filed a formal EEO complaint on August 7, 1998, alleging
that the agency had discriminated against him on the bases of race
(Caucasian), sex (male), age (DOB: 5/28/53), and reprisal (prior EEO
activity under Title VII and the ADEA) when he was not selected for
any of the nine Procurement Analyst positions advertised under Vacancy
Announcement Number 98-21 based on the policies contained in the agency's
Equal Opportunity and Diversity Management Plan, although he was better
qualified that some of the selectees.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 16, 1999, the agency filed a
Motion for Summary Judgment. In a ruling dated October 26, 1999, the AJ
determined that summary judgment was not appropriate. Specifically, the
AJ found that credibility determinations were required due to, among other
things, the subjective criteria referenced by the interviewing officials.
Accordingly, the AJ found that there were genuine issues of material fact
and a hearing was required. The agency's Motion for Summary Judgment
was denied as it pertained to the non-selection claim and the case was
placed on the calendar for a hearing.<1>
Following a hearing on the non-selection claim, the AJ issued a bench
decision finding no discrimination. Specifically, the AJ found that
the agency had articulated legitimate, nondiscriminatory reasons for not
selecting complainant. The AJ noted that one of the panel members (P1:
Caucasian female, DOB: 6/7/50) had worked with S3 and thus, had personal
knowledge of S3's work experience. The AJ also noted that the panel
members did not rate complainant in the top group of candidates. The AJ
further noted that the only individual with knowledge of complainant's
prior protected activity did not have a role in selecting any of the
candidates.
The AJ also found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discriminatory animus and/or retaliatory motive. The agency's final
order implemented the AJ's decision.
On appeal, complainant contends that although White men represented
15% of the applicants they represented only 11% of the selectees.
Complainant also contends that the selectees did not meet the educational
requirements of the position, nor did any of them have a master's degree.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
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. National Labor Relations Board, 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.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
The record evidence shows that the although education was an important
factor, it was just one factor of many to be considered and it could be
outweighed by actual performance. The record reflects that members of
the panel were seeking candidates with strong communications skills and
complainant failed to demonstrate that he was an effective communicator
during the interview. The Commission also notes that while each panel
member had a different rating for complainant, no panel member rated
him within the top ten.
The record evidence also shows that those individuals who were in the
1102 series at the time of the selection at issue did not have to meet
the educational requirements. The record reflects that the agency sought
people with people skills, meeting skills, and the ability to head a task
force; none of the panel members believed that complainant was a strong
applicant in these areas. In regard to complainant's reprisal claim,
there is not sufficient evidence that the only person with knowledge
of complainant's prior protected activity had a role in making the
recommendations.
Under these circumstances, the Commission finds that the AJ's findings
of fact are supported by substantial evidence in the record and that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's race, sex, and/or age.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final order.
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
August 21, 2002
__________________
Date
1 Complainant also alleged that the agency had discriminated against him
when the Office of Procurement and the Office of Small and Disadvantaged
Business Utilization were not agreeable to his lateral reassignment into
their respective organizations. The AJ dismissed this issue concluding
that complainant failed to state a claim. The dismissal of that claim
is not challenged before the Commission.