Carl Frazier, Complainant,v.Tom Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJun 4, 2009
0120083270 (E.E.O.C. Jun. 4, 2009)

0120083270

06-04-2009

Carl Frazier, Complainant, v. Tom Vilsack, Secretary, Department of Agriculture, Agency.


Carl Frazier,

Complainant,

v.

Tom Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120083270

Agency No. RMA-2003-00084

DECISION

On August 28, 2006, complainant filed an appeal from the agency's August

9, 2006 final action concerning his equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

For the following reasons, the Commission REVERSES the agency's final

action.

BACKGROUND

On January 4, 2003, complainant filed an EEO complaint wherein he claimed

that he was discriminated against on the bases of race (African-American)

and in reprisal for his previous EEO activity under Title VII when he

was not selected for the position of Risk Management Specialist, GS-13.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final action pursuant to 29 C.F.R. �

1614.110(b). The agency determined that complainant failed to prove

that he was subjected to discrimination as alleged.

The record indicates that complainant worked for the agency's Risk

Management Agency from approximately March 1990 to June 2001. Complainant

subsequently resigned from the agency. On May 12, 2002, he submitted an

application for the position of Risk Management Specialist under Merit

Promotion Announcement RMA-KC-10-2002. There were a total of four

vacancy announcements for the Risk Management Specialist positions.

The candidates were recruited at the GS-5/7 and GS-12/13 grade

levels. Complainant was rated as qualified for a position at the GS-13

grade level, he was placed on the promotion certificate, he interviewed

for the position, and he was not selected.

The record reveals that two panels were formed to interview candidates

for the positions. There are no written records from the interview

process. The panels were composed of a supervisor, two staff members,

and a Human Resources employee who attended the interview as an EEO

observer. One panel interviewed applicants for the GS-5/7 positions

and the other panel interviewed candidates for the GS-12/13 positions.

The candidates were rated either highly qualified, middle qualified,

or least qualified. One of the staff members stated that complainant

was rated as middle qualified. The Chief of the Policy Development

and Underwriting Standards Branch reviewed the panels' results and then

recommended candidates for selection.

The selecting official was the Director of the Product Development

Division. He stated that he authorized the vacancy announcement for the

position, provided input into the panel process, requested and received

recommendations from his Branch Chiefs regarding selections, and signed

letters advising applicants of their nonselection. According to the

Director, the position at issue was a Risk Management Specialist, and the

position title existed in three different branches within the division.

The Director stated that the agency was attempting to fill multiple

positions within the three branches. There were 28 applicants under

the four vacancy announcements, four of whom, including complainant,

are African-American. Nineteen candidates qualified for recruitments

at the various grade levels. Thirteen individuals were interviewed for

the positions at the GS-12/13 levels. Four applicants were selected for

the GS-12/13 positions and the agency states that three of the selectees

are White and one is believed to be White.

The quality ranking factors listed in the position description included:

1. Ability to establish and maintain successful working relationships

with educational and private sector representatives;

2. Ability to lead efforts in evaluating complex and varied information

and developing solutions or recommended courses of action;

3. Ability to present findings, ideas and recommendations orally and in

writing; and

4. Knowledge of agricultural commodities and practices.

Complainant stated that his experience included over sixteen years of

crop insurance knowledge and five years as an accountant in this area.

According to complainant, he informed the interview panel that he had

over five years of auditing experience that includes analyzing data.

According to the Chief of the Policy Development and Underwriting

Standards Branch, none of the interview questions specifically focused

on crop insurance. He stated that the questions addressed a candidate's

communication skills and ability to analyze data and formulate solutions.

He claimed that the panel members were seeking individuals who could

resolve complex insurance problems and conduct analysis. The Director

stated that although he does not recall how the interview panel rated

the applicants, the individuals selected were identified as the best

qualified by the interview panel.

The agency determined that complainant established a prima facie case of

race discrimination. The agency also determined that it articulated a

legitimate, nondiscriminatory rationale for its selections. The agency

noted that the Chief stated that the selectees were chosen rather than

complainant because their skills and qualifications fit the agency's

needs. The Chief further stated that the selectees gave strong responses

to the questions concerning their qualifications and work experience

in terms of their ability to do the job. With regard to complainant's

claim of pretext, the agency noted that complainant claimed that he

possessed superior credentials and that it failed to send him the

interview questions in advance as it did with the other applicants.

The agency rejected these contentions. The agency found that it

ultimately sent complainant the interview questions and provided him with

a second interview. The agency also found that the two staff panelists

did not rate complainant as being highly qualified after the interview.

The agency noted that the applications of two of the selectees showed

they were very qualified as their backgrounds addressed the qualifying

rating factors listed in the position description.

The agency determined that complainant failed to establish a prima facie

case of reprisal. The record reveals that complainant had previous EEO

activity as he had filed three EEO complaints prior to his nonselection.

The agency determined that there was an insufficient temporal link

between the most recent complaint of June 30, 2001, and the October 10,

2002 notification to complainant that he had not been selected for the

relevant position.

On appeal, complainant contends that he is limited in presenting his

argument because no rating and ranking documents from the interview

panel are in the record. Therefore, complainant states he is unable

to review the scores and prove that he was more qualified than the

other candidates. Complainant claims that only less qualified White

candidates were selected. Complainant contends that the agency originally

told him there were no interview questions. Complainant argues that the

agency ultimately provided him with the interview questions and scheduled

another interview only after he learned that all of the other applicants

had been provided with the questions in advance. Complainant notes that

the agency stated that they did not provide the questions because they

could not reach him, yet during the same time period they were able to

reach him to set the date and time of his initial interview.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that he

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).

To ultimately prevail, complainant must prove, by a preponderance of the

evidence, that the agency's explanation is a pretext for discrimination.

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097

(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request

No. 05950351 (December 14, 1995).

The record shows that the selectees for the GS-12/13 positions (White)

were outside of complainant's protected class. We therefore find that

complainant has established a prima facie case of race discrimination.

The Commission finds that the agency failed to provide a legitimate,

nondiscriminatory reason for complainant's nonselection. The record does

not contain the rating sheets that were, according to agency officials,

completed by the interview panel in its evaluation of the candidates.

Although the relevant officials explained that the selectees were

chosen based on the fact that their skills and qualifications fit the

agency's needs, this explanation offers little in the way of specifics.

We find that the agency failed to set forth, with sufficient clarity,

reasons for complainant's nonselection such that complainant has been

given a full and fair opportunity to demonstrate that the agency's

reason was pretextual. See Parker v. United States Postal Service, EEOC

Request No. 05900110 (April 30, 1990); Lorenzo v. Department of Defense,

EEOC Request No. 05950931 (November 6, 1997).

Based on the record, complainant appears to possess similar qualifications

and experience as the other selectees.1 The agency's explanation for

choosing these selectees rather than complainant is not sufficiently

detailed to provide complainant the opportunity to demonstrate that those

reasons were a pretext for discrimination where complainant possesses

at least the same qualifications. The record contains no elaboration

of how the selectees demonstrated greater proficiency than complainant

with regard to their communication skills, ability to analyze data,

and ability to resolve complex insurance problems. The record reveals

that complainant was a staff accountant for eleven years with the agency.

Complainant stated in his application that he analyzed data, led financial

reviews, reviewed the work of others, and communicated with a variety

of private and governmental entities.

In light of complainant's qualifications and the agency's failure

to provide a sufficient articulation of its reasons for not selecting

complainant for the position in question, we find that the agency failed

to overcome complainant's prima facie case of race discrimination.

Therefore, the Commission finds that complainant has established his

claim of race discrimination when he was not selected for the GS-12/13

Risk Management Specialist position. Due to our finding of race

discrimination, we need not make a finding concerning whether complainant

was discriminated against in reprisal for his prior EEO activity since

any finding regarding discrimination based on reprisal would not affect

the final remedy.

CONCLUSION

Accordingly, the Commission REVERSES the agency's final action finding

no discrimination based on race and the agency shall comply with the

Order herein.

ORDER

1. Within 60 days of this decision becoming final the agency shall

offer complainant the position of Risk Management Specialist, GS-13, or a

substantially equivalent position at the agency's Risk Management Facility

in Kansas City, Missouri, or at an installation of complainant's choice.

Complainant shall be given 15 days from receipt of the offer within which

to accept or decline the offer. Failure to accept the offer within the

15-day period shall be considered a declination of the offer, unless

complainant can show that circumstances beyond his control prevented a

response within the time limit.

2. Within 60 days of the date this decision becomes final, the agency

shall determine the appropriate amount of back pay, with interest,

and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501.

Complainant shall cooperate in the agency's efforts to compute the amount

of back pay and benefits due, and shall provide relevant information

requested by the agency. If there is a dispute regarding the exact

amount of backpay and/or benefits, the agency shall issue a check to

complainant for the undisputed amount within 60 days of the date the

agency determines the amount it believes to be due. Complainant may

petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

3. Within 180 days of the date this decision becomes final, the agency

shall provide eight hours of EEO training to the responsible agency

officials regarding their obligations under Title VII. If any of the

responsible agency officials are no longer employees of the agency,

then the agency shall furnish documentation of their departure date(s).

4. Within 180 days of the date this decision becomes final, the agency

shall consider taking appropriate disciplinary action against the

responsible agency officials. The agency shall report its decision to

the Compliance Officer, referenced herein. If the agency decides to

take disciplinary action, it shall identify the action taken. If the

agency decides not to take disciplinary action, it shall set forth the

reason(s) for its decision not to impose discipline. If any of the

responsible agency officials have left the agency's employment, then

the agency shall furnish documentation of their departure date(s).

5. The agency shall undertake a supplemental investigation to determine

complainant's entitlement to compensatory damages under Title VII. The

agency shall give complainant notice of his right to submit objective

evidence (pursuant to the guidance given in Carle v. Department of the

Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective

evidence from complainant in support of his request for compensatory

damages within 45 days of the date complainant receives the agency's

notice. No later than 90 days after the date that this decision becomes

final, the agency shall issue a final decision addressing the issue of

compensatory damages. The final decision shall contain appeal rights to

the Commission. The agency shall submit a copy of the final decision to

the Compliance Officer at the address set forth herein.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Risk Management Agency facility

in Kansas City, Missouri copies of the attached notice. Copies of the

notice, after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

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 4, 2009

__________________

Date

1 The investigative record contains the job applications of two of the

selectees but it is not clear whether the applications of the other two

selectees are included.

??

??

??

??

2

0120083270

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

8

0120083270