0120073035
12-04-2009
Deborah A. Lombardino, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Deborah A. Lombardino,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120073035
Hearing No. 570-2006-00200X
Agency No. CRSD-CF-2006-00069
DECISION
On June 22, 2007, complainant filed an appeal from the agency's May 22,
2007 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency properly determined that
complainant had not been discriminated against when she was not selected
for two positions to which she had applied.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisory Equal Employment Specialist, GS-14 at the agency's Farm
Service Agency, Office of Civil Rights facility in Washington, D.C.
On November 25, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (Caucasian), sex (female),
color (white), and in reprisal for prior protected EEO activity arising
under Title VII when:
1. on October 21, 2005, she was not selected for the position of
Supervisory Equal Employment Specialist, (Chief, Complaints Adjudication
Division), GS-260-15, advertised under Vacancy Announcement No. EO-05
-135; and
2. on September 30, 2005, Vacancy Announcement No. EO-05-136, for the
position of Supervisory Equal Opportunity Specialist, (Chief, Program
Complaints Division), GS-260-15, was cancelled and re-advertised under
Vacancy Announcement No. EO-05-214, in order to prevent complainant from
being selected.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing, but subsequently withdrew her request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Neither party submitted any contentions either in support of or in
opposition to complainant's appeal.
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). 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, 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In its final agency decision (FAD), the agency found that complainant
had established a prima facie case of sex discrimination with respect to
issue 1, as she had applied and was qualified for the position but was
not selected, and the selectee was male. It found that complainant had
not established her prima facie cases of race or color discrimination
as the selectee for the position in issue 1 was also a white Caucasian.
The agency concluded that complainant had not shown a prima facie case
of reprisal discrimination because she had not shown that there was a
causal connection between her non-selection and her prior EEO activity.
However, assuming complainant had established her prima facie case on
all four bases, the agency found that it had advanced a legitimate,
nondiscriminatory reason for not selecting complainant, namely that
the selectee was the superior candidate, and was chosen based on his
qualifications. The agency concluded that complainant had not shown
that reason to be pretext for discrimination and had not proven that
she was better qualified than the selectee.
As to issue 2, the agency found that complainant had not shown her
prima facie cases on any basis. Complainant was specific in her
complaint that what she was complaining about was the cancellation of
Vacancy Announcement No. EO-05-136, and its re-announcement as Vacancy
Announcement No. EO-05-214. She claimed that it had been cancelled in
order to try to prevent her selection for the position. The agency noted
that all the original applicants under Vacancy Announcement No. EO-05-136
were also considered under Vacancy Announcement No. EO-05-214, which
merely widened the area of consideration in an attempt to attract a larger
pool of candidates. As such it stated that complainant had not suffered
any material harm when the position was re-advertised, as all applicants
were not selected under the original announcement, and those applicants
were still considered under the revised announcement. When interviews
were conducted for the Chief, Complaints Adjudication Division, the
interview panel also used that information in its consideration when
selecting the selectee for the Chief, Program Complaints Division.
Even assuming complainant had established her prima facie cases
of race, color, sex and reprisal, the agency advanced a legitimate
nondiscriminatory reason for the re-advertisement, to widen the pool
of candidates. It concluded that complainant had not shown this reason
to be pretext for discrimination.
We have reviewed the record before us and find that the agency has
properly analyzed the facts of the complaints with regard to complainant's
claims of discrimination. There is simply no evidence that complainant
was not selected for discriminatory reasons, or that the agency
re-advertised for new applicants as a way of preventing her selection.
CONCLUSION
Based on a thorough review of the record, and in the absence of any
contentions on appeal, we therefore AFFIRM the agency's decision finding
that complainant had not been discriminated against.
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 (S0408)
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 (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
_____12/04/09_____________
Date
2
0120073035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120073035