Erwin D. Rackley v. Department of Agriculture
01A41705
February 22, 2006
.
Erwin D. Rackley,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A41705
Agency No. 010253
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his formal 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.
BACKGROUND
During the relevant time, complainant was employed as a Risk Management
Specialist, GS-12, at the agency's Valdosta Regional Office in Valdosta,
Georgia. Complainant filed a formal EEO complaint on January 9, 2001.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination on the basis of sex (male) when:
he was not selected for the position of Program Manager, Deputy Regional
Director, GS-0340-13, in the Valdosta Regional Office under Vacancy
Announcement FO-RMA-076.
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.
On November 14, 2003, the agency issued a final decision, finding no
discrimination. The agency found that complainant established a prima
facie case of sex discrimination because complainant was considered
qualified for the position in question but was not selected, and the
selectee was female. However, the agency determined that management
articulated a legitimate, nondiscriminatory reason for its non-selection
of complainant. The agency found that the selectee was better qualified
than complainant. Further, the agency found that complainant failed to
present any evidence which demonstrated that management's articulated
reasons for its actions were a pretext for discrimination.
In her affidavit, the Selecting Official (SO) stated that during the
relevant time period, a vacancy announcement was posted for ten newly
created Deputy Regional Director positions in ten regional agency offices
nationwide, open to all potential candidates, including candidates not
currently in government service. The SO further stated that the agency
Human Resources department determined that out of a "large number" of
applications, an initial pool of 187, fifty-nine candidates, including
complainant, were considered qualified for interviews.
Panel interviews were set up nationwide at regional offices and other
locations that were convenient for both the panelists and candidates.
The SO stated that not all fifty-nine candidates were interviewed in
the region to which they applied. The SO stated "we provided for an
additional opportunity for a regional director to meet with a candidate
being closely considered for selection prior to the selection if it was
felt necessary." The SO stated that "in every way that we could, we again
went to great pains to ensure fairness to the maximum extent possible
by developing a standard procedure for all interviews including six
questions that would be asked of all interviewees and a numerical scoring
of responses." The record reflects that after the panel interview,<1>
complainant received a score of 24 points out of a possible 30 points,
while the eventual selectee received 29 points out of 30.
The SO stated that her focus was on getting the "best" person for the job.
The SO stated that she, and not the Valdosta Regional Director (Director),
made the selection for the subject position in the Valdosta Regional
Office, because the Director had not yet assumed his new position.
The SO noted that she was aware that the Director might have chosen a
candidate other than the selectee had he been the selecting official,
but believed this was because he did not �have the full grasp of what
the position was contemplated and intended to be." The SO, noting that
the Director had not participated in the lengthy discussions that had
gone on for several years over the creation of the new deputy positions,
said that it was clear from her discussions with the Director that he
wanted to focus on the technical aspects of the job. However, the SO
stated this would not have given sufficient attention to �the primarily
managerial aspects of the position� or the agency's goal of considering
applicants from outside the agency, including those currently employed
in the private sector.
The SO stated that she chose the selectee for the subject position because
the selectee was the best qualified candidate based on the following
factors: her application package; Knowledge, Skills and Abilities (KSAs)
statement; and interview score. The SO again noted that the selectee
received a higher score than complainant from the interview panel.
The SO acknowledged that the respective interviews were done by two
different panels "but I again stress that we feel we provided for as
objective and uniform system of interviewing as possible so that the
relative scoring would be fair and accurate." The SO stated that prior to
choosing the selectee, the Director met with her for a second interview.
The SO acknowledged that complainant had a "very good deal of experience"
in the program aspects of the Risk Management programs. However, the
SO noted that the subject position was more managerial than technical
in nature.
Complainant argued that during a meeting concerning the selections, the SO
told the Director that he was "looking at the wrong position description"
concerning technical duties in the subject position description. The SO
stated that she did not inform the Director or anyone else that they
were looking at the wrong position description "or even implying in any
way that there was more than one position description involved in this
selection process at that meeting." Furthermore, the SO stated that
in the subject position description, the technical details described
were to show that the new Deputy Regional Director would be supervising
employees with technical duties.
Complainant further argued that during a meeting in St. Louis, Missouri,
regarding choosing the selectees, the SO and the Regional Directors
listed candidates on a blackboard by their sex and other protected group
factors. The SO acknowledged that they composed a grid of the candidates
still under consideration and that noted �diversity factors such as sex,
race, etc.� The SO stated that she and the Regional Directors also
considered "the respective locations of the candidates with regard to
the vacancies being filled and whether or not relocation expenses would
be required." The SO stated that while diversity is a concern for the
agency and something management considers, diversity factors �did not
govern the selection," and gender was not a factor in her determination to
choose the selectee for the subject position. Rather, it was her judgment
that the selectee was �the best person for the Valdosta position.�
In his affidavit, the Director stated that he was not the selecting
official for the subject position, but that he was involved in the
selection process. The Director further stated that during the St. Louis
meeting all of the Regional Directors "were asked to give our short list
of applicants and those names were then written on a blackboard along
with the applicants' sex and race." The Director stated that while
the selections were not made during the meeting, he noted that it was
clear that the SO "wanted to coordinate the selections as a group and a
great deal of emphasis was given to the point that diversity was to be
important in the make-up of the group of persons selected." The Director
stated that it was his impression that the selectee's experience "while
impressive, was heavily weighed toward the administrative side of the
position and she lacked the technical expertise I thought was being
sought in the selection process as stated in the vacancy announcement
and the position description." The Director stated that while selectee
had performed well in the subject position, he noted that her role "had
been weighted toward the administrative and supervisory facets of the
position with the technical program requirements remaining in the hands
of the Senior Risk Management Specialists, which may very well be what
the position was contemplated to be."
On appeal, complainant contends that the agency's decision overlooked
SO's discriminatory action. Complainant further contends that "nearly
adequate representation of diversity was selected for other offices
and one more female was needed to make the selection process complete.
That last piece of the picture was put in place by [SO] in selecting a
female for the Valdosta office while ignoring the position description
and a qualified candidate." Complainant contends that the SO ignored 13
paragraphs listed in the position description dealing with the technical
responsibilities of the subject position. Complainant states that if
SO wanted a "purely" managerial/supervisory position, she should have
asked for a more detailed position description. Furthermore, complainant
states that "one cannot ignore and change a position description after
announced regardless of what they think they want."
ANALYSIS AND FINDINGS
As a general matter, in the absence of direct evidence of discrimination,
claims of discrimination alleging disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this analytical framework,
the 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Dep't 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. However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450
U.S. at 253).
Complainant may establish a prima facie case of discrimination in the
non-selection 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 not members of his
protected group. Complainant may also set forth evidence of acts, from
which, if otherwise unexplained, inference of discrimination can be drawn.
Furnco, 438 U.S. at 570. We find that complainant established a prima
facie case. However, we find that the agency articulated legitimate,
nondiscriminatory reasons for complainant's non-selection, as discussed
below.
The record reflects that complainant was among the candidates considered
qualified for the subject position in the Valdosta Regional Office,
and was given an interview and rated by a panel of agency officials.
Further, the record reflects that, out of the candidates interviewed for
the Valdosta position, selectee had the highest overall ranking score
while complainant was ranked third.
The selecting official (SO) averred that the selectee for the position
of Program Manager, Deputy Regional Director was chosen because of her
superior work experience, KSAs, and high interview score. In particular,
the SO indicated that the selectee had superior managerial experience
and skills, which the new position was designed to emphasize, while
complainant's experience was in the technical aspects of the job.
The SO noted that following the interview, the selectee was ranked first,
while complainant was ranked third.
Once the agency has articulated a legitimate, nondiscriminatory reason for
the selection made, the burden returns to complainant to establish that
the agency's explanation was a pretext for discrimination. Upon review,
we find that complainant has failed to show that the SO's explanation
for his non-selection was a pretext for sex discrimination. First,
while complainant presented some evidence that the Valdosta Regional
Director might have made a different decision, the record establishes
that he was not the selecting official and had not participated in the
many meetings that led up to the establishment of the new deputy director
positions. Therefore, the SO explained that the Director's emphasis on
technical expertise was misplaced, as the positions were designed to be
primarily managerial with subordinates providing the technical expertise.
The record supports the agency's determination that the selectee was
more qualified for such a position, given her work experience and higher
interview score. Second, the agency acknowledged that responsible
management officials listed candidates, including complainant, on a
blackboard by their sex and other protected group factors during the
selection process. However, the agency has credibly established that
the candidates' sex did not affect the selection for the subject position.
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 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
February 22, 2006
__________________
Date
1 Complainant and the selectee were not interviewed by the same panel.
Comments