0520140079
06-27-2014
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Request No. 0520140079
Appeal No. 0120121346
Agency No. FS-2007-00465
DECISION
EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c). For the following reasons the Commission reopens the decision in EEOC Appeal No. 0120121346 (April 25, 2012) on its own motion, and VACATES the previous decision in part.
BACKGROUND
At the time he filed his formal complaint, Complainant was a Cartographer/Geographic Information Systems (GIS) Specialist, GS-1370-9, at the Agency's Forest Service, Region 5, Six Rivers National Forest (SRNF), Recreation and Land Management Planning Division in the Supervisor's Office, located in Eureka, California.
Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (Caucasian), national origin (Hispanic), sex (male), age (60), and in reprisal for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964 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. when:
1) in February 2007, he learned that, due to a reorganization, his GS-1370-9 Cartographer (GIS Specialist) position was designated for abolishment;
2) on March 27, 2007, he learned that he was not selected for the GS-401-11 Resource Information Specialist (GIS Coordinator) position, announced under vacancy number 07-R5-SRFSO-02195G on the Six Rivers National Forest; and
3) in May 2007, management denied his request to have his position reclassified as a GS-401 Resource Information Specialist.
The Agency issued a final decision in which it found that Complainant had not established that he was subjected to discrimination or harassment as alleged. Complainant filed an appeal from the final agency decision, which was considered in the previous decision, EEOC Appeal No. 0120121346.
In the previous decision, the Commission affirmed the Agency's finding of no discrimination with respect to claims 1 and 3. It found that claim 2 was the same claim as that raised in Agency No. FS-2006-02258, and it dismissed the claim. It noted that FS-2006-02258 was processed as a claim of breach of settlement agreement in EEOC Appeal No. 0120102307 (April 25, 2012).
The decision in EEOC Appeal No. 0120102307 addressed Complainant's claim that the settlement agreement signed between him and the Agency on September 25, 2006, had been breached. In Agency No. FS-2006-02258, Complainant raised issues which alleged that the Agency discriminated against him on the bases of national origin (Hispanic) and in reprisal for prior protected EEO activity when: 1) on June 28, 2006, he was issued a Letter of Warning (the letter was later revised on July 25, 2006); 2) on May 30, 2006, he was denied the opportunity to compete for his supervisor's position, GIS Coordinator, GS-401-11, when the vacancy was "flown" in the GS-401 series, which effectively blocked him from being qualified for the job; and 3) on March 23, 2006, he was notified that his position was unfunded and was slated to be abolished.
The September 25, 2006, settlement agreement provided (in part) that Complainant would "be given an open, fair and unbiased opportunity to [compete] for the position of GIS Coordinator, GS-401-11 or GS-1301-11 at the Six Rivers National Forest. The Forest Service will assure [C]omplainant that [Complainant's supervisor] or any others Six Rivers Forest personnel will not participate in either the screening or selection of the candidates."
The decision in EEOC Appeal No. 0120102307 found that the Agency had breached the settlement agreement when the selecting official had prohibited the contacting of any of Complainant's references, which rendered the selection process not "fair." The effect of this prohibition was that the selecting official could not confirm Complainant's work experience. Complainant noted that his application specified only that his current supervisor should not be contacted, but he provided contact information for other, prior supervisors. The decision in EEOC Appeal No. 0120102307 ordered the Agency to reinstate processing the complaint from the point processing ceased.
On May 24, 2012, the Agency submitted a petition for clarification with respect to the decision in EEOC Appeal No. 0120102307, and its interaction with the finding in EEOC Appeal No. 0120121346, that claim 2 should be dismissed as the same claim raised in the previous complaint. It explained that it believed that the claims remanded for processing in EEOC Appeal No. 0120102307 "may have already been addressed and adjudicated by the Agency" in Agency No. FS-2007-00465, EEOC Appeal No. 0120121346. As EEOC Appeal No. 0120121346 had dismissed claim 2 as the same claim as that processed in Agency No. FS-2006-02258, the Agency requested that the Commission clarify exactly which claim it was to reinstate, as it believed that it had already adjudicated Complainant's claim of nonselection for the GS-401-11 Resource Information Specialist (GIS Coordinator) position.
Upon review of the Agency's petition for clarification in EEOC Petition No. 0420140004 (June 20, 2014), the Commission has decided to reopen, on its own motion, the decision in EEOC Appeal No. 0120121346.
ANALYSIS AND FINDINGS
We first find that, after a review of the records submitted in connection with EEOC Appeal No. 0120102307 and EEOC Appeal No. 0120121346, it is unclear that the nonselection referenced in Agency No. FS-2006-02258 and the nonselection referenced in Agency No. FS-2007-00465 in fact are the same nonselection. The date cited by Complainant in FS-2006-02258 on which he was "denied the opportunity to compete for his supervisor's position, GIS Coordinator GS-401-11, when the vacancy was "flown" in the GS-401 series" was May 30, 2006. The date cited in FS-2007-00465 on which "he learned that he was not selected for the GS-401-11 Resource Information Specialist (GIS Coordinator) position, announced under vacancy number 07-R5-SRFSO-02195G on the Six Rivers National Forest" was March 27, 2007. On the face of it, these would appear to be two different incidents. The record shows that the open dates for vacancy announcement 07-R5-SRFSO-02195G were October 12, 2006 through November 28, 2006. Therefore, the date cited in FS-2006-02258, May 30, 2006, occurred before the dates of the vacancy announcement at issue in FS-2007-00465.
It is unclear if a selection was made from the vacancy announcement cited by Complainant in Agency No. FS-2006-02258. The vacancy announcement number was not specified in the complaint file, as no investigation had yet been conducted, due to the signing of the settlement agreement soon after Complainant filed his formal complaint in September 2006. When processing the reinstated claims, as per the Order in EEOC Appeal No. 0120102307, and the Order in the petition for clarification, EEOC Petition No. 0420140004, the Agency will presumably determine whether the nonselection referenced by Complainant is the same as that in Agency No. FS-2007-00465, and proceed accordingly.
Therefore, we VACATE the previous decision, EEOC Appeal No. 0120121346, with respect to its finding on claim 2. As we have determined that claim 2 in the instant complaint should not have been dismissed as the same claim as that in Agency No. FS-2006-02258, we will consider for the first time in this request for reconsideration whether the Agency properly determined that Complainant had not established that he had been discriminated against when he was not selected for the GS-401-11 Resource Information Specialist (GIS Coordinator) position, announced under vacancy number 07-R5-SRFSO-02195G at the Six Rivers National Forest.
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 Chap. 9, � VI.A. (Nov. 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, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The complainant 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). To ultimately prevail, the complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
We find that, assuming Complainant had established his prima facie cases of disparate treatment discrimination on the bases of race, national origin, age, sex, and reprisal, the Agency has articulated legitimate, nondiscriminatory reasons for the nonselection. The Agency found that Complainant was one of seven candidates referred on the best-qualified list to the selecting official. The selecting official was the Forest Supervisor, GS-14, stationed at another location for the Agency, and so was not a Six Rivers National Forest employee, which would have been a violation of the settlement agreement in Agency No. FS-2006-02258. The selecting official did not conduct interviews, but rather relied on the applications submitted by each candidate and on the references provided. The reference checks were conducted by the Agency's Regional Office Selection Team (ROST) staff. According to the selecting official, Complainant's "application noted that work-related reference checks were not to be checked at his request." The selecting official stated that she checked the accuracy of Complainant's request with the ROST and the Agency's Human Resources Department, and they "confirmed that [she] would have to consider his application without checking any work-related references" but they "did not indicate why." The ROST did do a reference check with one of Complainant's former military supervisors. The selecting official chose the selectee (White, male, 31, no prior EEO activity) on the strength of his solid GIS experience, previous time spent in the same position (at another Agency location) at a lower grade-level, and positive reference checks. In contrast, Complainant had no current work-related references, and the selecting official believed that by being restricted to only his written application, she had no "context as to how he actually performed." The selecting official documented the reasons for her choice in a February 23, 2007, selection memorandum. The selecting official testified that she received no input from any Six Rivers National Forest personnel and that she did not know Complainant.
We find that, although Complainant showed that the Agency process was not "fair" as specified in the settlement agreement, and as found in EEOC Appeal No. 0120102307, Complainant has not shown that the process for vacancy announcement 07-R5-SRFSO-02195G was discriminatory, or that the Agency's reasons for his nonselection were pretext for discrimination. Complainant argued that he had specified on his application that it was permissible to contact certain personnel at the SRNF as references, but not those who he had alleged had discriminated against him in his prior complaint. He contended that it was not "fair" that none of his references at the SRNF were contacted, and that his past supervisors, both at the Agency and in other arenas, could have been contacted for a reference.
Complainant has not established that the failure to check his references or the Agency's decision to prohibit contacting Complainant's references was done for discriminatory reasons. Although it may have been an overbroad interpretation of that provision of the September 2006 settlement agreement, there is no evidence that the ROST staff informed the selecting official that she could not contact Complainant's references due to discriminatory motives.
Complainant argued, in effect, that by stating on his application that certain references at the Six Rivers National Forest may be contacted, that should supercede the language in provision 1(a) of the settlement agreement that states "Six Rivers Forest personnel will not participate in either the screening or selection of the candidates." The Agency clearly interpreted that provision to mean that no Six Rivers National Forest personnel should be contacted for a reference as well as not being part of any selection panel or interview panel or to serve as a selecting official.
We note that Complainant did not request a hearing before an EEOC Administrative Judge, but asked for a final agency decision on the record. In the absence of testimony or having the benefit of credibility findings issued by an AJ following a hearing, we are unable to say that Complainant has established that the failure to check his references was due to discrimination or that the Agency had discriminatory motives.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that this matter meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to VACATE its previous decision in EEOC Appeal No. 0120121346, in part, and the
Agency's decision finding no discrimination with respect to claim 2 is AFFIRMED. As this is the first time we are addressing the merits of claim 2 in Complainant's complaint and appeal, we have afforded him reconsideration rights as appended to this decision.
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 27, 2014
Date
2
0520140079
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140079