0120101135
06-09-2011
___________________, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
___________________,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101135
Agency No. ARFTMONM09JUN00044
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s December 14, 2009 final decision concerning
her 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.
BACKGROUND
During the period at issue, Complainant was employed as an Acting Command
Inspector General at the Agency’s CECOM, Fort Monmouth, New Jersey.
On January 7, 2009, Complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On February 13, 2009, Complainant filed the instant formal complaint.
Therein, Complainant claimed that the Agency discriminated against her
on the bases of national origin (Hispanic), sex (female), and age (over
40) when:
a. on January 5, 2009, she was notified that she was not selected for
the position of Inspector General, YA-1803-03, advertised under Vacancy
Announcement Number NEL-08919489;
b. she was not officially temporarily promoted to the position of
Inspector General during the time she held the Acting Inspector General
position from September 2, 2008 to January 31, 2009; and
c. she did not receive credit for acting as an “Unofficial Deputy
Inspector General” for one year (September 2007 – September 2008).
On March 18, 2009, the Agency issued a partial dismissal. The Agency
accepted claims a - b for investigation. However, the Agency dismissed
claim c on the grounds of untimely EEO Counselor contact pursuant to 29
C.F.R. § 1614.107(a)(2).
After the investigation concerning claims a - b, the Agency provided
Complainant with a copy of the report of investigation and notice of the
right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with Complainant’s request, the Agency issued a final
decision on December 14, 2009, pursuant to 29 C.F.R. § 1614.110(b).
In its December 14, 2009 final decision, the Agency again found
that claim c was properly dismissed on the grounds of untimely EEO
Counselor contact. The Agency then addressed claims a - b on the merits,
finding no discrimination. The Agency found that in regard to claim a,
Complainant did not establish a prima facie case of age discrimination.
However, the Agency found that Complainant established a prima facie
case of sex and national origin discrimination because the selectee was
outside of Complainant’s protected groups. The Agency nevertheless
found that Agency management articulated legitimate, nondiscriminatory
reasons for its actions which Complainant failed to show were a pretext
for discrimination.
With respect to claim b, the Agency found that Complainant did
not establish a prima facie case of sex, national origin and age
discrimination. The Agency nevertheless found that Agency management
articulated legitimate, nondiscriminatory reasons for its actions which
Complainant failed to show were a pretext for discrimination.
Regarding claim a, the record reflects that fifteen candidates were
referred to the selecting official (SO) for consideration for the
position of Inspector General (IG). The record further reflects that
out of the fifteen candidates, twelve candidates, including Complainant,
were interviewed for the subject position. SO stated that he implemented
a panel of three Agency officials to interview the twelve candidates.
SO stated that following the interviews, he chose the selectee for the
subject position because the panel recommended him. SO stated that the
selectee was the highest ranked candidate, with an overall score of
155 points, while Complainant was ranked ninth with an overall score
of 109 points. SO stated that during the relevant time, he pulled the
selectee’s resume and “I read it top to bottom; I thought great
choice, highly qualified.” Specifically, SO stated that the selectee
“has been a sitting IG, he has worked in IG offices, he has multiple
Masters degrees, and just his overall broad overall background and
experience, retired military, just a sterling resume.”
SO stated that he did not select Complainant for the subject position
because she was ranked ninth. Specifically, SO stated “I can’t skip
eight people to go to number 9.” SO stated that as Complainant’s
second-level supervisor, he had an opportunity to observe her work
performance which he found to be average. Furthermore, SO stated that
Complainant’s national origin, sex and age were not factors in his
determination to select selectee for the subject position.
One of the three panelists (P1) stated that the panel recommended
the selectee for the subject position because he was the highest
ranked candidate. P1 stated that the selectee did very well during
the interviews and answered all of the panel’s questions thoroughly.
Specifically, P1 stated “I think the thoroughness of [selectee’s]
answers, his experience, and he answered the questions in detail and
he answered the questions we asked.” P1 stated that Complainant did
not do well during the interview. P1 stated that in his notes, there
were a couple of questions “where I actually wrote, ‘[Complainant]
did not answer this question,’ I underlined the word ‘this,’ and
essentially took a tangent that didn’t pertain to the question or just
didn’t answer the question, so I think that hurt her.” P1 further
stated that he was waiting for Complainant “to provide something
tangible that I could write down, but for whatever reason she did not
answer the question.”
Another panelist (P2) stated that the panel felt that the selectee was the
best qualified for the subject position because he did very well during
the interview and has extensive experience. Specifically, P2 stated
that the selectee “answered the questions very well, it was obvious
that he had done some homework. He had checked out some things as to the
background of the Command, CECOM. He knew the technical questions when
we asked about the triangle of confidentiality and the IG action, COPRA
(phonetic), he was able to elaborate. When we asked him the questions
pertaining to citing specific examples where he conducted an inspection
or inquiries, he gave us really good examples of what he had done.
And I guess the other thing is that he had worked at several different
levels within the IG system and had been at the Two Star Command level
and he seemed to be pretty well-rounded.”
P2 stated that the panel did not recommend Complainant for the subject
position because she did not do well during the interview. P2 stated
that there several instances “where I wrote that [Complainant] really
didn’t answer the questions that were asked. One the one, on the
triangle [question], she didn’t really talk about . . . the three axis
that make up the triangle and she didn’t really elaborate. When we
asked questions about the strengths of the IG system she kind of talked
about her own strengths so she didn’t answer the question. When we
asked her to cite specific examples on inspections or investigations
in which she either led or participated in she didn’t give us any
specifics. My notes indicated that she thinks the IG should work as a
team to resolve issues ahead of schedule, she didn’t describe any of the
above, so she didn’t cite any concrete examples of her experience.”
Regarding claim b, SO stated that he made a determination not to
temporarily promote Complainant to the position of Inspector General
because there was insufficient workload to justify a temporary promotion.
Specifically, SO stated “I just didn’t see the workload so I chose
not to do that.” Moreover, SO stated that he did not discriminate
against Complainant based on her national origin, sex and age.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred in finding no
discrimination. For instance, Complainant argues that in regard to claim
a, her twenty-five years of experience “is a vast wealth of knowledge
in many subjects and functional areas/matters in the IG office. I have
completed thousands of complaints in many numerous subject matters
in complexity, completed thousands of complex Hotlines and Inquiries
in many areas and completed them well or superior in nature; completed
countless Inspections in countless areas.”
Complainant further argues that in regard to claim b, there is no policy
in which “states ‘workload’ is an indication whether someone should
be officially temporarily promoted. In fact, Complainant testified, and
[SO] was not asked by the Investigator, that Complainant never briefed
[SO] on workload because according to IG regulation and policies, the
only one that can be briefed on IG taskings is the CECOM Commander, due
to confidentiality.” Complainant argues that during her acting role,
there was an overwhelming amount of workload and “two other inspectors
as the IG office lot 4/5 personnel and Complainant had to acquire her own
taskings as an Assistant Inspector General, Secretarial/administrative
duties (vacant slots), and the Acting Inspector General assignments
(vacant slot).”
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
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. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).
This established 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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the Agency’s findings. We have considered
Complainant’s appellate arguments but find that Complainant has not
established pretext in regard to the Agency’s articulated reasons for
its actions in regard to claims a and b. Therefore, after a review of
the record in its entirety, including consideration of all statements on
appeal, it is the decision of the Equal Employment Opportunity Commission
to AFFIRM the Agency’s final decision because the preponderance of
the evidence of record does not establish that discrimination occurred.1
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
June 9, 2011
__________________
Date
1 On appeal, Complainant does not challenge the March 18, 2009 partial
dismissal issued by the Agency regarding claim c. Therefore, we have
not addressed this issue in our decision.
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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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