0120103079
12-14-2011
Deborah A. White, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
Deborah A. White,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 01-2010-3079
Hearing No. 410-2009-00301X
Agency No. HHS-CDC-1410-2008
DECISION
On July 13, 2010, Complainant timely filed a timely appeal from
the Agency’s final order dated June 7, 2010, 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 Commission accepts the appeal
pursuant to 29 C.F.R. § 1614.405(a).
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against based
on her race (black) and sex (female) when she did not have the opportunity
to apply for the position of Management and Program Analyst, GS-12.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
a Transportation Assistant, GS-7, and was then Lead Transportation
Assistant, GS-8, at the Agency’s Centers for Disease Control and
Prevention (CDC), Global Program Services Office, in Atlanta, GA.
She was responsible for processing travel vouchers.
On December 23, 2008, she filed an EEO complaint alleging, in relevant
part, the above issue. Following an investigation, she had a hearing
before an EEOC Administrative Judge (AJ), who made a decision finding
no discrimination. The Agency subsequently issued a final order adopting
the AJ’s decision.
The Agency advertised two slots for the position of Management and
Program Analyst, GS-0343-12, located in Complainant’s office, from
April 21, 2008, through May 5, 2008, under vacancy announcement numbers
HHS-CDC-T3-2008-0517 and HHS-CDC-D3-2008-0251. Around this time,
the Agency had openings in the same office for the position of Lead
Transportation Assistant, GS-2102-8, and Supervisor of the Global Travel
Office, GS-11. The function of the Management and Program Analyst was to
find methods of making processing travel vouchers more efficient, which
included customer service and creating tracking devices. The function
of the Supervisor was to supervise employees processing travel vouchers.
Complainant applied for the Lead Transportation Assistant, GS-8, job,
and was chosen by selecting official 1. She did not apply for the
Management and Program Analyst vacancies, explaining she did not have
the time in grade as a GS-11 to qualify. She contended that had the
job been advertised as a GS-9/11/12, she would have qualified.
Selectee 2 (white male) applied for the position of Management and
Program Analyst, and Selectee 1 applied for the Supervisor job. At the
prompting of Selecting Official 1 and/or the approving official on the
selections, Selectee 1 declined the Supervisor job and accepted an offer
for the position of Management and Program Analyst. Selecting Official
1 chose him. She chose Selectee 3 (black female) for the Supervisor
position, but this could not happen unless Selectee 1 declined the job,
because of his veteran’s preference. It is uncontested that Selecting
Official 1 believed it was important to the success of the program to
choose Selectee 3 as the Supervisor because of her many years of relevant
CDC travel experience.
Selecting Official 1 chose Selectee 2 for the second slot of the
Management and Program Analyst job. The approving official played
a de facto co-selecting official role in choosing Selectees 1 and 2.
Candidates who applied for Management and Program Analyst through the
vacancy announcements and qualified at the GS-12 level were placed on
certificates. Selectees 1 and 2 were not on them. They were chosen using
the alternate hiring authority of Veterans Recruitment Authority (VRA),
which is non-competitive. Selectee 1 qualified at the GS-11 level, and
Selectee 2 at the GS-9 level. For this reason, Selectee 1 was offered
the job at the GS-11/12 level, and Selectee 2 at the GS-9/11/12 level.
Their effective start dates, as well as Complainant’s, was July 20,
2008.
The AJ credited the testimony of Selecting Official 1, who was
Complainant’s supervisor during the selections, that Complainant did not
express an interest in the Management and Program Analyst position to her.
The AJ credited the testimony of a Senior Human Resources advisor, based
on a review of Complainant’s application for the Lead Transportation
Assistant, GS-8, job, that she would not have been eligible for the
Management and Program Analyst position at the GS-9 level.
In concluding that there was no discrimination, the AJ found that
Complainant, a veteran, was not similarly situated to Selectees 1 and
2 because she did not qualify for the Management and Program Analyst
at the GS-9 level. The AJ found that even if Complainant made out a
prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Based on testimony of
management witnesses, the AJ found that the Agency had authority to
fill the Management and Program Analyst slots via the non-competitive
VRA process, and Selectees 1 and 2 were chosen because the Agency
believed they were best qualified. The AJ credited Selecting Official
1’s testimony that Selectee 1 was a good fit because of his years of
experience in travel with the military at a high level and knowledge
about implementing systems which would allow greater efficiency in
the office. The AJ credited the approving official’s testimony that
Selectee 2 was selected because he possessed the analytical skills
that correlated well with the position and his skill set indicated he
would be very successful in the position. Selectee 2 was the approving
official’s subordinate, who testified in glowing terms about Selectee
2’s observed qualifications, as well as those in his application,
such as the experience gained from owning his own graphics design firm.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (November
9, 1999).
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). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
On appeal, Complainant argues that she had she applied for Management
and Program Analyst, she would have qualified at the GS-9 level.
She argues that she would have tailored her application to be responsive
to the vacancy announcements by setting forth her analytical skills,
and that she was better qualified than the selectees. In opposition to
the appeal, the Agency argues that the AJ’s decision is supported by
substantial evidence.
The record supports by substantial evidence the AJ’s finding that
the Agency chose Selectees 1 and 2 because it believed they were
well qualified for the position. Complainant argues that she was
better qualified. An employer has discretion to choose among equally
qualified candidates, so long as the selection is not based on unlawful
criteria. In the absence of such evidence, the Commission will not
second guess the agency's assessment of the candidates' qualifications.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259
(1981). While the Agency was aware of Complainant’s excellent skills
processing travel vouchers and leading efforts to do so, it was not aware
that she possessed analytical skills on the level possessed by Selectees
1 and 2, which was what the Agency was seeking for the Management and
Program Analyst position.
Complainant has not demonstrated pretext. She argues that the Agency
sought to cut her out of consideration by advertising the Management and
Program Analyst position at the GS-12 level. We disagree. There is no
evidence the Agency was aware she was interested in this position, or that
she expressed any interest in it. Further, as far as the Agency knew,
Complainant was not qualified for the position at even the GS-9 level.
The Agency’s final order adopting the AJ’s finding of no
discrimination is AFFIRMED.
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
December 14, 2011
__________________
Date
1 In her complaint, Complainant also raised the basis of reprisal for
prior EEO activity and a second claim. Complainant is now only pursing
the above issue.
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01-2010-3079
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103079