0120141564
10-03-2016
Doretta F.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Doretta F.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120141564
Hearing No. 430-2012-00265X
Agency No. HSUSCG213242012
DECISION
On March 13, 2014, Complainant filed an appeal from the Agency's March 7, 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 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly found that Complainant failed to establish that she was discriminated against on the basis of race (African-American), sex (female), and reprisal (prior protected activity), when on June 10, 2011, the Agency did not select her for the GS-0343-13, Supervisory Management/Program Analyst position, under Vacancy Announcement No. 11-1824-NE-GM-M.
BACKGROUND
The record reflects that Complainant worked as a Management/Program Analyst, GS-12, in the Agency's Medium Range Recovery Division at the Aviation Logistics Center (ALC) in Elizabeth City, North Carolina. The following facts are set forth in the AJ's decision: In or around April or May 2010, Complainant filed an EEO complaint alleging that the Agency ordered her to train an employee, C1 on contract labor systems, and removed these duties from her position. From May 10, 2011 through May 24, 2011, the Agency advertised its intent to hire a Supervisory Management/Program Analyst, OS-0343-13, in the Industrial Operation Division under Vacancy Announcement 11-1824-NE-OM-M.
The position description for the OS-13, Supervisory Management/Program Analyst position, described the incumbent's duties as both technical and financial. In addition to the major duties, the vacancy announcement listed the qualification requirements of the position, requesting that the qualified candidate have one year of specialized experience at the GS-12 level to included, but not be limited to: (l) using analytical and evaluative methodology and techniques to integrate major complex projects, (2) using a wide range of qualitative and/or quantitative methods for the assessment and improvement of program effectiveness or the improvement of management processes and systems, (3) implementing changes in production operations, management practices, employee utilization and integrated efforts, and (4) evaluating program objectives, coordinating implementations and providing tracking systems to measure and monitor program progress. No specific education was required.
Applicants were required to submit an on-line application which included a resume and answers to the self-assessment questions which demonstrated the applicant's knowledge, skills, and abilities (KSAs) to perform the position. The record reflects that Complainant applied for the position. According to her resume, Complainant worked as a Management and Program Analyst (for approximately two years) with the Agency's ALC. Prior to that position, she worked as a Budget Analyst (for approximately four years) and as an Accountant (for approximately seven years) with the Agency's Aircraft Repair and Supply Center. In addition, she had a Bachelor's Degree and Master's Degree in Public Administration and a Master's Degree in Systems Management. Once the vacancy announcement closed, the Agency issued a Merit Promotion Certificate for the vacancy which contained the names of Complainant, the Selectee (White, male), and three other applicants.
According to his resume, the Selectee worked as a Supervisory Production Controller (for approximately four years) and Production Controller (for approximately three and 11 years) in the Agency's Industrial Operations Division, at ALC. Also, he worked for approximately six years as an Electronics Mechanic Leader, Assistant Progressman, Assistant Aircraft Planner and Estimator, and Aircraft Planner and Estimator with the Agency's ALC. Although not specifically identified, the Selectee stated that he had worked for approximately 28 years with the Agency's ALC.
As described in the Selection Panel Rating Plan, the evaluation criteria counted the Application Assessment at 75% and the Interview at 25%. The Application Assessment included Experience (50%), Training (10%), Education (10%), Performance Evaluations (4%), and Incentive Awards (1 %). The Interview included seven questions which were rated on a scale of Strong (3 points), Adequate (2 points), Weak (1 point), and None (0 point).
On or around June 2, 2011 Complainant discovered that one of the members on the selection panel was named in her previous EEO complaint. Complainant requested that all members of the selection panel with knowledge of her EEO complaints and union grievances remove themselves from the panel. After investigating whether or not regulations prohibited an individual from serving on the selection panel where they would have to consider the selection of an individual who had previously filed an EEO complaint to which they had knowledge of, the EEO Officer advised Agency Command that there was no such prohibition.
The selection process proceeded as planned. The selection panel rated Complainant and the Selectee as follows:
KSAs Training Evaluations Awards Interview Total Selectee 95 16 8 4 24.11 93.59 Complainant 41 16 8 4 13.39 59.75
Specifically, the panel member whom Complainant thought should remove herself from the panel rated Complainant's and the Selectee's KSA responses as follows:
KSA 1 KSA 2 KSA 3 KSA 4 KSA 5 KSA 6 Total Selectee 4 4 4 4 4 4 24 Complainant 2 1 2 2 1 1 9
From the remaining panel members the Selectee received scores of 23, 24 and 24, and Complainant received scores of 8, 11, and 13. The same panel member gave Complainant a total interview score of 10 and the Selectee a total interview score of 21. From the remaining panel members, the Selectee received interview scores of 20, 20 and 20, while Complainant received scores of 12, 11 and 12. The selection panel recommended that the Selectee be offered the position and an African American male was recommended as the alternate.
Believing that she was a victim of discrimination, Complainant contacted an EEO counselor. On January 4, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. Complainant believed she was better qualified for the job because of her education, experience and current job. She stated that she believed the Agency pre-selected the Selectee for the position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Administrative Judge. Complainant timely requested a hearing and the AJ held a hearing on August 6, 2013, and issued a decision on February 5, 2014 finding that Complainant failed to establish that she was discriminated against as alleged. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ's decision erred in finding that she failed to establish she was subjected to discrimination as alleged. Specifically, Complainant contends that the decision failed to take into account the improper advantages afforded the white Selectee which ultimately led to him being selected for the position. Complainant contends that the AJ improperly found that there was no evidence the advantages afforded the Selectee were based on discrimination. Complainant argues that while the Agency's legitimate non-discriminatory reason for the selection was that the Selectee did better in the selection process, the selection process itself lacked the necessary legitimacy as the Selectee was given preferential treatment prior to the selection process which "stacked the deck in his favor." Complainant maintains, this same preferential treatment, simultaneously bolstered the Selectee's chances for selection, but minimized hers, e.g., stripping her of duties which related to the vacant position.
In response to Complainant's appeal, the Agency, in pertinent part, requests that the Commission affirm the AJ's decision that Complainant did not prove she was discriminated against as alleged.
STANDARD OF REVIEW
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. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). 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 reprisal, like the AJ, we find that the Agency articulated legitimate, non-discriminatory reasons for its selection decision with respect to the vacant position. We also find that there is substantial evidence to support the AJ's conclusion that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus. In response to Complainant's allegations that the non-selection was discriminatory, the record established that the best qualified person for the position in the Industrial Operations Division was selected based on the applicants' resumes and interviews. Specifically, the Selection Panel members testified that Complainant's resume showed limited experience, lack of diversity, and minimal independence and that Complainant did not do well in her interview. The Selectee, in contrast, provided detailed information about his general experience working in the Industrial Operations Division and provided specific experience working on the budget in the Industrial Operations Division. All members of the Selection Panel believed the Selectee was the most appropriate candidate for the position. They also selected an alternate, who like Complainant was black.
The Agency contends that the selection process was unbiased and uniformly applied to all of the applicants. With respect to Complainant's initial concern that some panel members were aware of her prior EEO activity, the Agency contends that EEO personnel were consulted and an EEO Officer advised the Agency to proceed with a transparent selection process. 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 an 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). We find substantial evidence in the record to support the AJ's findings in the instant matter, and no evidence of unlawful motivation or discriminatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision finding that Complainant failed to establish that she was discriminated against on the basis of race, sex, and reprisal, when on June 10, 2011, the Agency did not select her for the GS-0343-13, Supervisory Management/Program Analyst position.
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
_10/3/16_________________
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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