0120141243
11-30-2016
Danial B.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Danial B.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120141243
Agency No. DFAS000342012
DECISION
On March 14, 2013, Complainant filed an appeal from the Agency's February 27, 2013, final decision concerning his 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency properly found that Complainant was not subject to discrimination on the bases of race (African-American), sex (male), and age (47) when, on or about, January 23, 2012, he was not selected for the position of Financial Management Specialist, GS-0501-09.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Military Pay Technician, GS-0545-08 at the Agency's Retired & Annuitant Pay Branch facility in Cleveland, Ohio. The Agency's Human Resources (HR) office posted Job Announcement Number: CL-579891-12 for a Financial Management Analyst, GS-0501-09/11, position with an open period of December16, 2011 to December 28, 2011. On January 4, 2012, the HR office issued a Non-Traditional Certificate of Eligible Control Sheet identifying 19 applicants, including Complainant, as candidates for the position at issue. The Manager of Special Interest reviewed the resumes and decided to interview seven people (three Black, four White, three females, four males, and five under forty (40)). A White male and a Black female, both over 40 were selected for the position. On January 24, 2012, Complainant was notified that he was not selected for the position.
The record reflects that the Agency was looking for candidates that were highly articulate and who could work well to represent the Division to outside customers. While there was no pre-determined spreadsheet for the position, the selecting officials were looking for examples of both written and oral communication skills, and knowledge of military or retirement pay. The resumes of the seven individuals selected for interviews showed that they all had good education, and communication skills.
On April 30, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of Issue Presented above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
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").
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race, sex, and age, that record evidence supports the FAD's conclusion that he did not show that the Agency's reasons were pretextual. We find that the Agency articulated legitimate, non-discriminatory reasons for the non-selection, and that Complainant failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.
Specifically, the Selecting Official recalled that Complainant was not articulate and did not have the presentation skills necessary for the position. The Director of Operations conducted the interviews and stated that Complainant was not offered an interview because his resume did not score high enough to garner an interview; his resume did not demonstrate that he had good oral communication skills; he had a limited knowledge base; and he was ranked 15 out of 19 on the referral list. Additionally, while his resume indicated that he was good at his position with the Ombudsman department, he was only employed in this job for seven months and was not offered the opportunity to be hired for the position. Complainant had no training or coursework after high school, while both of the selectees had significant training and/or formal education.
The selectees both had experiences the Selecting Officials felt made them best suited for the position. The male selectee previously worked for the Pentagon and was very articulate. He had general knowledge of the military culture, understood the customer base, and had the ability to articulate a problem and find a solution. The female selectee was a GS-9 supervisor at the time she applied for the position, had knowledge of the retired pay system, was formally educated beyond high school, and was very articulate. In sum, both were deemed to be the best fit for the position in light of their previous work history and experience. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find there is no persuasive evidence of unlawful motivation in the instant matter.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly held that Complainant did not establish that he was discriminated against on the bases of race, sex, and age when he was not selected for the position of Financial Management Specialist.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
_11/30/16_________________
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.
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