0120162525
02-02-2018
Carolyn M.,1 Complainant, v. David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Carolyn M.,1
Complainant,
v.
David S. Ferriero,
Archivist of the United States,
National Archives and Records Administration,
Agency.
Appeal No. 0120162525
Hearing No. 560-2014-00262X
Agency No. 1330STL
DECISION
On July 27, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 15, 2016, 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
At the time of events giving rise to this complaint, Complainant worked as an Archives Technician at the Agency's National Archives and Records at the National Personnel Records Center (NPRC) facility in St. Louis, Missouri.
On September 16, 2013, Complainant filed an EEO complaint. She alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (62) when, on June 19, 2013, she was not selected for the position of Supervisory Archives Specialist.
The Agency accepted the complaint and conducted an investigation. The investigative record reveals that Complainant was an Archives Technician, GS-1421-5 in the Archival Research Room. Her primary duties were to process fees received from the public and respond to the requests. She had held the position for seven years, but had more than 30 years of experience working for the Agency. She received outstanding ratings on her performance appraisals and had been promoted twice.
The Agency posted a vacancy announcement for multiple positions. Complainant applied for the position of Supervisory Archives Specialist, GS-1421-7, advertised under Job Announcement Number JD894977MC. The major duties, according to the position description included Program Management / Administration Operations (65%) and Supervisory Duties (35%).
Her name was referred for consideration as one of the 12 Best Qualified candidates on the Merit Promotion Certificate of Eligibles. Seven of the 12, who were referred, were not Caucasian males.
On June 10, 2013, Complainant was interviewed. The interview panel consisted of four Caucasian men: the Supervisory Archivist; the Supervisory Archives Specialist and Manager of the Public Research Room and Fees Desk; the Supervisory Archivist, Archival Operations Reference Branch; and the Supervisory Archivist for Processing and Access Branch. Three of the four were younger than Complainant.
Her immediate supervisor (Caucasian, male, younger) was on the interview panel. He averred that Complainant was not selected because she did not provide thorough responses and this forced the interview panel to prompt Complainant for more information. He contrasted Complainant's interview to the selectee's interview. He averred that he found the selectee had no problems when speaking with people and had very good supervisory experience.
The panel recorded the interview scores on the Interview scoring sheets. The panel then totaled their points and compared the scores to come to a consensus on each candidate. Complainant was ranked eighth of the twelve candidates.
The selecting official (Caucasian, male, age 69) was Complainant's third-line supervisor. He averred that candidates were considered and ranked based on the selection criteria, which included the candidate's documentation of his or her experience and knowledge to come to a final ranking.
The Agency selected a substantially younger, Caucasian male for the position. The selectee's application stated that he had several years of supervisory experience as an owner and project manager in a cable communications firm.
The Agency's stated reason was that the selectee gave substantive answers and "was very strong in the supervisory questions." The selectee was scored higher because he articulated satisfactory responses to the questions about dealing with employees and the public.
Complainant averred that she was not asked about her supervisory experience during the interview. Complainant also stated in her affidavit that she believed that the selectee was a supervisor at McDonald's. She also implied that nepotism was a factor because she believed that the selectee was related to the selecting official.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant initially requested a hearing, but subsequently the AJ determined that she withdrew her request and ordered the Agency to issue a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The Agency's decision concluded that Complainant failed to prove that she was subjected to discrimination as alleged. The Agency reasoned that it articulated legitimate, non-discriminatory reasons for the non-selection which clearly outweighed Complainant's evidence. The Agency found that it had demonstrated that Complainant was not selected for the supervisory position because of her lack of supervisory experience in relation to other candidates and her poor interview performance. The Agency stated that the number of years of experience, alone is insufficient to establish that someone's qualifications are observably superior. The Agency found that Complainant did not establish pretext for the alleged discrimination. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant asks that we overturn the Agency's decision. She maintains that the Agency's stated reasons were not legitimate or non-discriminatory and were a pretext for racial, ageist and sex animus. She claims that she performed tasks beyond those stated in her position description. She also claims the Agency preferred Caucasian males for management positions and groomed the unqualified selectee for promotion due to nepotism.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").2
Section 717 of Title VII requires that federal agencies make all personnel actions free of race or sex discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on race or sex"). Similarly, Section 633(a) of the ADEA requires that federal agencies make all personnel actions free of age discrimination. See 29 U.S.C. � 633(a) (all personnel actions affecting federal employees or applicants "shall be made free from any discrimination based on age"). It is not necessary for Complainant to show that age discrimination was the sole determinative factor to prevail in a federal sector complaint. Federal agencies are required to proactively make all actions free of age discrimination.
We will assume for purposes of our analysis that Complainant established a prima facie case of discrimination based on race, sex and age. She was qualified and a younger person who was not of her race or gender was offered the position.
In this case, however, we find the Agency articulated legitimate, non-discriminatory reasons for its non-selection decision. The Agency stated that it selected the candidate that it viewed as the best qualified and who was scored the highest by the rating panel.
The record supports the articulated reasons. The record shows that the selectee received a higher score from the rating panel than the score issued to Complainant. The record shows that Complainant was ranked eighth out of 12 employees on the certificate of eligible candidates. The Agency officials averred that they viewed the selectee as more qualified, because they believed he had supervisory experience, was more knowledgeable about the Agency's operations, and that he performed better during the interview than Complainant. Each of these reasons is a legitimate, non-discriminatory reason, if true. Complainant did not show that the stated reasons were untrue.
Even if we assumed that the officials involved in the selection decision were mistaken as to the actual qualifications of the selectee, the record does not show that Complainant's race, sex or age were the true reasons it decided not to select her for the position at issue.
For these reasons, we find that Complainant did not prove, by a preponderance of the evidence, that the stated reasons were a pretext for unlawful discrimination.
CONCLUSION
Accordingly, for the reasons stated herein, we AFFIRM the Agency's Final Decision.
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 tends 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.
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
February 2, 2018
__________________
Date
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 The record shows that two weeks prior to her retirement in January 2016, the Agency offered Complainant $50,000 as a settlement in exchange for her retirement and withdrawal of her complaint. The record does not show the parties ever signed an agreement that resolved this matter. Neither party asserts that this complaint was withdrawn. We will, therefore, consider this matter on the merits.
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