Colene R.,1 Complainant,v.Wendy Spencer, Chief Executive Officer, Corporation for National and Community Service, Agency.

Equal Employment Opportunity Commission

Apr 8, 2016

0120142466 (E.E.O.C. Apr. 8, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Colene R.,1
Complainant,

v.

Wendy Spencer,
Chief Executive Officer,
Corporation for National and Community Service,
Agency.

Appeal No. 0120142466

Agency No. 04-13-014

DECISION

Complainant filed an appeal from the Agency’s May 14, 2014 final order concerning her 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., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. Our review
is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a State Program
Specialist, at the Agency’s work facility in Atlanta.

On September 10, 2013, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (Caucasian) and age (57) when:

1. On or around July 3, 2013, Complainant was informed by the Southern Cluster
Manager that she had not been selected for the position of Mississippi State
Program Specialist, Vacancy Announcement Number: CNS-13-181-897534.

2. On or around May 21, 2013, Complainant’s request to be transferred to the
Mississippi State Office was denied by the Southern Cluster Area Manager.
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.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation.

The Agency determined that no discrimination occurred with respect to claim (1). The Agency
dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant
failed to initiate contact with an EEO Counselor in a timely manner. The Agency stated that
Complainant became aware of her denied transfer on May 21, 2013, but did not contact an
EEO Counselor until July 26, 2013, after the expiration of the 45-day limitation period.

With respect to claim (1), the Agency stated that Complainant was one of six individuals
interviewed for the relevant position. The interview panel was composed of the Southern
Cluster Area Manager (AM), the Mississippi State Director, and a North Carolina-based State
Program Specialist. The selectee was an African-American, age 34.

The Agency stated that Complainant believed she was not selected in part because all of the
interviewing officials were African-American. The Agency noted that Complainant maintained
that she was significantly more qualified than the selectee. Complainant stated that she has
twelve years of experience as a State Program Specialist in contrast to the selectee’s three
years of VISTA experience. According to Complainant, she has experience in every aspect of
the relevant position, including volunteer support, programming and program development in
both VISTA and the Senior Corps. Complainant argued that in addition to the selectee having
only three years of experience as a VISTA member, she had no experience working with the
Senior Corps. Complainant also stated that the selectee was not working for the Agency when
she was chosen for the position. Complainant asserted that the Mississippi State Director
recommended her for the position. Complainant pointed out that the AM’s two-year selection
history revealed that 86% of those he selected were under the age of 40.

The Agency stated that each of the six applicants were asked the same interview questions and
that both Complainant and the selectee interviewed well and were among the top three
candidates for selection. The AM rated Complainant second best as he considered the selectee
more qualified based on her interview responses being more specific to the mission. The
Agency explained that the Director of the Office of Field Liaison concurred in the AM’s
recommendation that the selectee was the best candidate based on the quality of her
professional references. According to the AM, Complainant’s responses to questions intended
to demonstrate the core skills of the position were less robust and explicit than that of the
selectee, and her responses to other questions concerning program knowledge were not as
articulate or detailed as that of the selectee. According to the North Carolina-based Program
Specialist, the selectee responded with detailed specific examples of how her skillset met or
exceeded the job requirements. The Program Specialist stated that the selectee demonstrated in
her responses, leadership ability, strong communication, computer skills and computer
knowledge. The Agency considered these statements to be legitimate, nondiscriminatory
reasons for its selection.

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In attempting to establish pretext, Complainant argued that the Mississippi State Director’s
opinion, that she had the best interview, should have mattered most since he would be the
selectee’s supervisor. The Agency noted that the AM stated that the Mississippi State Office
had failed in the previous year and that may have caused the AM not to credit his opinion as
much as the North Carolina-based Program Specialist. The Agency rejected Complainant’s
contention that the selectee was not qualified for the position. The Agency pointed out that the
selectee was referred as noncompetitive eligible, had a relevant Master’s Degree, and that each
of the three officials conducting the interview stated that the recommendation was based on the
interview responses. With regard to Complainant’s contention that 86% of all selections for
the two years preceding the selection were under the age of 40, the Agency states that this
argument is not probative of age being a factor in the instant selection without evidence as to
the ages of the referred eligible applicant pools. The Agency notes that if this data was
credited as to age, then the data concerning race would discount it as a basis since the Director
of Field Liaison has chosen 22 Caucasians out of 27 selectees. The Agency determined that
Complainant failed to establish pretext.

CONTENTIONS ON APPEAL

On appeal, Complainant contends as to the dismissal of claim (2) that she was not aware she
could file a complaint concerning a denial of transfer. Complainant further states that she did
not want to risk her chances of competing for the Mississippi position under the vacancy
announcement by filing a complaint regarding her denied transfer. With regard to claim (1),
Complainant maintains that the Mississippi State Director told her that her interview responses
were excellent. Complainant states that the Mississippi State Director had much more
experience in her position than the North Carolina-based Program Specialist and therefore was
more qualified to evaluate applicants for a State Program Specialist position. Complainant
further states that she was not asked four of the interview questions. According to
Complainant, the AM and the North Carolina-based Program Specialist appeared to base their
choice of the selectee on her ability to answer questions in a more enthusiastic way than her
rather than on qualifications and experience necessary for the position. Complainant questions
how the selectee could be more qualified than her given that she was instructed to help train
the selectee.

In response, the Agency asserts that Complainant did not initiate contact with an EEO
Counselor concerning her denied transfer until more than sixty days after the denial, and thus
her EEO contact was untimely. With regard to Complainant’s nonselection, the Agency
maintains that while Complainant provided adequate answers to interview questions, the
selectee provided more detailed responses to the questions and gave a better indication of how
she would successfully perform the core skills of the position. The Agency notes that the
Director of the Office of Field Liaison concurred with the AM’s recommendation of the
selectee because the selectee’s professional references were strong. Specifically, the selectee’s
most recent supervisor described her as extremely smart and dedicated with strong analytical
skills and a methodical approach to work. The same reference indicated that the selectee
follows instructions and is an independent thinker who takes initiative. According to the

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Agency, the selectee’s second reference, another former supervisor, described her as a creative
problem-solver with a strong commitment to service. The Agency further states that the
selectee has three AmeriCorps member experiences and relevant degrees for the State Program
Specialist position, a Master’s Degree in Political Science from the University of Akron and a
Bachelor’s Degree in Political Science from Miami University. The Agency points out that
Complainant in contrast has two Associates Degrees from two community colleges. The
Agency states that Complainant failed to establish that her qualifications were plainly superior
to the selectee’s qualifications. The Agency rejects Complainant’s argument that the fact that
all the interview panelists were African-American influenced the selection process. The
Agency notes that the selecting official, the Director of Field Liaison, is Caucasian.

ANALYSIS AND FINDINGS

With regard to claim (2), Complainant‘s transfer was denied on May 21, 2013. Complainant
did not initiate contact with an EEO Counselor until July 26, 2013, after the expiration of the
45-day limitation period. Upon review of the reasons submitted by Complainant on appeal for
her untimely EEO contact, we find that they do not constitute adequate justification for her
failure to initiate contact with an EEO Counselor within the 45-day limitation period. Thus,
the Agency’s dismissal of this claim is AFFIRMED.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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.

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

We shall assume arguendo that Complainant set forth a prima facie case of race and age
discrimination as to her nonselection. The Agency explained that it chose the selectee rather
than Complainant based on the better quality of her interview responses and the strong,
positive comments from her professional references. We find that the Agency articulated
legitimate, nondiscriminatory reasons for its selection.

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Complainant attempts to establish pretext by arguing that her years of experience rendered her
a more qualified candidate for the position than the selectee. Complainant may be able to
establish pretext with a showing that her qualifications were plainly superior to those of the
selectee. Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995);
Bauer v. Bailar, 647. F.2d 1037, 1048 (10th Cir. 1981). Complainant has presented evidence
showing that she has twelve years of experience as a State Program Specialist and she manages
a portfolio of 22 Senior Corps and VISTA projects. Complainant also points out that the
Mississippi State Director, who was the supervisor for the position at issue, considered her the
best choice for the position. It is evident that Complainant possessed several notable
credentials in support of her application for the position. However, the selectee also possessed
several strong qualities in support of her application. The selectee’s credentials included three
years of experience as a VISTA member, two relevant academic degrees, better interview
responses as judged by a majority of the interview panelists, and strong professional
references. We find that persuasive evidence does not exist to establish that Complainant was
so better qualified for the position than the selectee that discrimination could be inferred from
her nonselection.

As to Complainant’s claim concerning the composition of the interview panel, we discern no
evidence that the fact that each member is African-American affected the selection decision.
Moreover, we observe that the selecting official, the Director of the Office of Field Liaison, is
Caucasian. We also agree with the Agency that Complainant’s contention that 86% of all
selections for the two years preceding the selection were under the age of 40, is not probative
of age being a factor in the instant selection without evidence as to the ages of the referred
eligible applicant pools.

CONCLUSION

The Agency’s determinations that no discrimination occurred as to claim (1) and its dismissal
of claim (2) on the grounds of untimely EEO contact are AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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:

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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 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, 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 (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

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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

April 8, 2016
Date