Edward J. Jones v. Department of Housing and Urban Development 01A45837 December 6, 2004 . Edward J. Jones, Complainant, v. Alphonso R. Jackson, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 01A45837 Agency No. AD 02-06 DECISION Complainant filed an EEO complaint in which he claimed that the agency discriminated against him on the bases of his race (Black), color (black), sex (male), and age (58), when his name was not among those referred on the best-qualified list for the position of Grants Administrator, GS-1101-14/15 position in the Office of Public and Indian Housing. The record reveals that complainant has been employed as a Program Analyst, GS-0343-13, in the Grants Management Center, Formula Grants Division, Public and Indian Housing Department since March 1998. Complainant was among fourteen applicants that sought the position. Nine of the applicants were referred as best qualified at the GS-14 grade. Six of the applicants were referred as best qualified at the GS-15 grade. Complainant was among five applicants who were not referred as best qualified. The selectees for both the GS-14 and GS-15 positions were Black females over the age of forty. The EEO complaint was accepted for investigation. Subsequent to the completion of the agency investigation, the agency notified complainant of his right to request either a hearing and decision by an EEOC Administrative Judge or an immediate final decision by the agency. The agency stated that complainant did not request a hearing or a final decision. The agency therefore issued a final action dated July 28, 2004, finding that no discrimination occurred. The agency determined that complainant failed to set forth a prima facie case of race, color, or age discrimination. The agency noted that the selectees were Black, in their fifties, and there was no indication in the record that the selectees were of a different color than complainant. The agency determined that complainant set forth a prima facie case of sex discrimination as both selectees were female. The agency determined that it articulated legitimate, nondiscriminatory reasons for its non-referral of complainant. According to the agency, the two panel members concluded that complainant's application did not provide extensive information on his KSAs to achieve the maximum number of points in each category. The agency stated complainant received five out of a maximum of nine points on the Office of Personnel and Training Rating Worksheet. The agency noted that this was short of the cut-off score of six points. The agency determined that complainant failed to show by a preponderance of the evidence that he was discriminated against when he was not referred for the positions at issue. On appeal, complainant contends that the panel members applied the crediting plan unfairly in order to keep his score at the average level. In response, the agency asserts that on the first quality ranking factor, the ability to direct and manage a staff, complainant scored one point out of a possible three points. The agency states that one panelist noted that complainant failed to mention any experience directing a staff in a multi-level supervisory/subordinate relationship. According to the agency, the other panelist stated that complainant's job application demonstrated that he was a team leader, but did not reflect an extensive background in this area. With regard to the second quality ranking factor, the ability to establish objectives and performance goals, monitor progress toward their achievement and set priorities based on changing requirements, the agency asserts that both panelists stated that complainant's narrative response failed to provide specific information to indicate how he met this requirement and that therefore complainant received a score of two points out of a possible three points. As for the third quality ranking factor, knowledge of the grants processing of formula-funded and/or categorical-competitive programs in the agency, the agency asserts that both panelists stated that complainant's response indicated experience, but not the type of in-depth, extensive experience noted by the selectee. The agency maintains that complainant's narrative response showed that his relevant experience was little more than reviewing proposals and assisting others in processing applications. The agency states that complainant received two points out of a possible three points. The agency asserts that complainant's application offered little indication of substantial, independent work regarding formula-funded and/or categorical grants. Finally, the agency asserts that complainant's claims of priority consideration, veterans' preference, preselection, and closeness of the panelists to the selecting official do not involve a claim of discrimination. The agency maintains that neither preselection nor closeness to the selection official are automatically improper. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case claiming discrimination is a three-step process as set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny. See also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing that age was a determinative factor, in the sense that “but for” age, complainant would not have been subject to the adverse action at issue). For complainant to prevail, he 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 consideration 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). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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 (2000). To establish a prima facie case of age discrimination, a complainant must show that he was over forty years of age, that he was subjected to an adverse employment action, and that he was treated less favorably than other similarly situated employees younger than himself, i.e. he was accorded treatment different from that given to persons who are considerably younger than he. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). This order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900150 (June 28, 1990). For purposes of analysis, we will assume, arguendo, that complainant has established a prima facie case of discrimination on the bases of race, color, sex, and age. Next, we shall consider whether the agency articulated a legitimate, nondiscriminatory reason for its actions. In this case, the Commission finds that the agency has articulated legitimate, nondiscriminatory reasons for its actions. Consequently, we will dispense with an examination of whether complainant established a prima facie case with respect to the above cited issues and review below, the reasons articulated by the agency for its actions as well as complainant's effort to prove pretext. The agency stated that complainant was not among the candidates referred to the selecting official because he failed to provide extensive information about his KSAs on his job application. The agency noted that complainant received a rating of five points out of a possible nine points, with the minimum grade for referral being six. The agency stated that complainant received a rating of one point out of three points for the factor of directing and managing a staff. The agency also stated that complainant received a rating of two points out of three points for the factors of the ability to establish objectives and performance goals, monitor progress toward their achievement and set priorities based on changing requirements, and knowledge of the grants processing of formula-funded and/or categorical-competitive programs in the agency. We find that the agency articulated legitimate, nondiscriminatory reasons for its decision not to refer complainant. We find that complainant has failed to refute the agency's stated reasons for his non-referral for the positions at issue. Complainant has not shown that his qualifications for the positions at issue were so superior to those of the referred candidates as to warrant a finding that the agency's stated reasons are pretextual. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant also has not shown that the panel members applied the crediting plan in a discriminatory fashion. With respect to complainant's claim of preselection, we observe that even if preselection occurred, complainant has not shown that any such preselection was motivated by a discriminatory animus. See Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). As for complainant's claim of priority consideration due to a previous error on a prior selection, complainant has not refuted the agency's position that priority consideration was not applicable here because the positions were different than the grade level and promotion potential of the position in which the procedural error occurred. Complainant also has failed to refute the agency's position that complainant's veteran's preference was not applicable because the vacancy was advertised for agency employees only. Finally, complainant's has not submitted any evidence that the alleged closeness between the two panelists and the selecting official is probative of discriminatory intent toward him. We find that complainant has not shown, by a preponderance of the evidence, that the agency's stated reasons for his non-referrals were pretext intended to mask discriminatory intent. After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's decision, because a preponderance of the record evidence does not establish that sex, race, color, or age discrimination occurred. 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 December 6, 2004 __________________ Date