Agency.

Equal Employment Opportunity Commission

Aug 11, 2020

2019002051 (E.E.O.C. Aug. 11, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colby S.,1 Grievant, v. Andrew Wheeler, Administrator, Environmental Protection Agency, Agency. Appeal No. 2019002051 FLRA No. 0-AR-5335 DECISION Grievant filed an appeal with the Equal Opportunity Commission (EEOC or Commission) from a decision of the Federal Labor Relations Authority (FLRA) dated December 21, 2018, concerning a grievance alleging 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 BACKGROUND At the time of events giving rise to this grievance, Complainant worked as an Attorney Advisor, GS-14, at the Agency’s Office of Regional Counsel, Chicago, Illinois. On June 9, 2016, the Agency announced the Senior Counsel for Water Enforcement and Counseling, GS-15, nonsupervisory attorney position.2 Grievant applied but was not selected for the position on September 27, 2016. On October 25, 2016, Grievant filed a grievance alleging that he was discriminated against based on race (Hispanic), color, national origin (Mexico), sex (male), and union activity (he was a union steward) when he was not selected for the position at issue. Following the denial of a Step 1 grievance, which was affirmed at Step 2, the grievance 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 It is noted that at the same time, on June 9, 2016, the Agency also announced another GS-15 Senior Counsel position for Air Enforcement and Counseling. Complainant did not apply for this position and this is not at issue. 2019002051 2 went to arbitration. On November 27, 2017, an Arbitrator issued his Decision and Award finding that the Agency preselected a Selectee (SE), White, female, for the position at issue and that it discriminated against Grievant based on his national origin (Mexican-American).3 The Arbitrator ordered the Agency to offer Grievant the GS-15 position for which he had applied. On December 22, 2017, the Agency filed exceptions to the Arbitrator’s Decision and Award to the FLRA. On December 21, 2018, the FLRA issued its decision finding no evidence that the SE was preselected on a prohibited basis for the position at issue. The FLRA further found that Grievant failed to meet his burden of demonstrating that the Agency’s proffered reason for selecting the SE was a pretext. The FLRA concluded that there was no evidence of intentional national origin discrimination and therefore, the Agency was entitled to judgment as a matter of law and vacated the Arbitrator’s finding of national origin discrimination and award. Grievant filed the instant appeal of the FLRA decision to the Commission. ANALYSIS AND FINDINGS To prevail in a disparate treatment claim such as this, a grievant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A grievant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n. 14. 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). Once the agency has met its burden, the grievant 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 a grievant 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). 3 The Arbitrator did not find discrimination based on any bases Grievant alleged other than national origin. 2019002051 3 The record indicates that Grievant, a GS-14, Attorney Advisor, applied but was not selected for the GS-15, Senior Counsel for Water Enforcement and Counseling position on September 27, 2016. In the June 9, 2016 announcement for the position at issue, candidates were instructed to submit a resume and an expression of interest to apply for the position. Specifically, they were instructed to submit their expression of interest (4 pages or less, 12-point font, default margins) describing examples of their work experience; addressing how they would perform the major duties and responsibilities set forth in the position description of the job; and identifying any knowledge, skill or experience they had that would be directly relevant, or transferable, to a position. The subject position description indicated that an incumbent’s major duties and responsibilities involved representing the Agency for all legal aspects of a Clean Water Act enforcement and legal counseling within the Region. It also indicated that an incumbent’s duties involved legal works involving other Federal statutes affecting the Agency’s programs, including the Oil Pollution Act. The record indicates that the Selecting Official (SO), the Regional Counsel, convened a three- member screening panel and a three-member selecting panel for the selection process. The screening panel reviewed candidates’ applications and resumes. After a review, the screening panel recommended two candidates, including the SE, as the best qualified candidates for the position because they had a depth of experience in the Clean Water Act and in cases in matters that made their applications compelling. The screening panel also recommended several other candidates (not Grievant) who had put forth strong applications but did not have extensive experience in the water area. The screening panel did not recommend Grievant as one of the top six candidates. The screening panel referred their recommendations to the selecting panel. The selecting panel, which included the SO, considering the screening panel’s recommendations, interviewed all 13 candidates, including Grievant, for the position. After considering the candidates’ expression of interest, resume, and interview, the selecting panel was in consensus as to the three top candidates, including the SE, for the position. Complainant was not one of the top three. Specifically, the selecting panel indicated that they only considered candidates’ expression of interest and resume and did not consider materials outside of these. The selecting panel found the SE’s expression of interest excellent. The selecting panel noted the cases that the SE had identified and worked on demonstrated an ability to handle difficult and complex work. The selecting panel found Grievant’s expression of interest good but much shorter and conclusory than the SE’s. The selecting panel noted that the SE had expertise in both areas of wetlands and the Clean Water Act, including Bypass and Overflow and combined systems overflows, whereas Grievant had expertise in wetlands only. Ultimately, the SO the SE for the position at issue. Specifically, the SO indicated that he found the SE’s application very thorough describing the 12 identified duties and responsibilities of the position and her interview was strong. The SO stated that the SE submitted a four-page expression of interest. 2019002051 4 Therein the SE described in detail her six cases she worked on, including four cases which concerned the Clean Water Act; she demonstrated originality and creativity in her cases; and she had expertise within the domain of the Clean Water Act in several areas, such as wetlands and combined sewer overflow cases, sanitary sewer overflow cases, national pollution discharge elimination system, enforcement, total maximum daily loads, grant work, some remediation work, and a broad range of expertise within the water area. The SO noted that the SE had prior relevant experience as an attorney with the Illinois Pollution Control Board. The record indicates that the SE had been in her Attorney Advisor at the Agency since 1989, and prior to that she worked as an attorney with the Illinois Pollution Control Board. The SO stated that Grievant’s application and resume were not that thorough and his oral skills tended to focus on only one case he worked on. The SO stated that Grievant submitted a one- page expression of interest. Therein Grievant briefly noted four cases his office worked on, including one case which concerned the Clean Water Act; he did not mention other Clean Water Act enforcement cases or counseling experience; he did not mention how his work experience would enable him to perform the 12 duties and responsibilities of the position; and he did not describe any knowledge, skill, or expertise that would be directly relevant or transferable to the position. The record indicates that Grievant had been in his Attorney Advisor position at the Agency since 1990, and prior to that he worked as a trial attorney for a private law firm and the Mexican-American Legal Defense and Education Fund concerning federal and state trial litigation, corporate, contracts, banking, and eminent domain, the Civil Rights, the Voting Rights Act, and the Immigration and Control Act. Upon review, we find that Grievant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not selecting him for the position. Furthermore, Grievant failed to show that his qualifications for the position were plainly superior to the SE’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Grievant failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, we AFFIRM the FLRA decision finding no discrimination. 2019002051 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2019002051 6 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 11, 2020 Date