0120141898
01-21-2016
Evelyn S.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Evelyn S.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120141898
Hearing No. 461-2013-00114X
Agency No. OCFO-2013-00175
DECISION
Complainant filed an appeal from the Agency's April 1, 2014 final order concerning her equal employment opportunity (EEO) complaint. She alleged 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS 7 Financial Management Assistant at the Agency's Government Employees Services Division National Finance Center (NFC) facility in New Orleans, Louisiana.
On February 6, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), color (dark complexion), age (62), and reprisal for prior protected EEO activity when the Agency did not select her for a Program Analyst GS-0343-07 position in the Contact Center at NFC.
Complainant was age 62 at the time of the selection. Management was aware of her age. She also had prior EEO activity, but the selecting official was not aware of Complainant's prior EEO activity.
The pertinent record shows that she applied for the position in the Contact Center under Vacancy Announcement Number NFC-12-198-GVM. She had prior Contact Center experience. She had been detailed twice to a Supervisory position at the GS-09 grade within the last ten years.
The Agency used a panel that rated the written applications and interviews for all of the eligible candidates. The panel was rating candidates for three GS-07 Program Analyst positions under the same vacancy announcement. Only one of the selections is at issue in this case.
The panel determined the structured performance-based interview questions and the rating system scores for each of the rating factors. For those applicants who were certified at the GS-07 level for the subject position, several candidates under the age of 40 and a male obtained scores lower than Complainant. The panel rated Complainant's written application and interview with a combined score of 34. The panel issued the selectee a higher combined matrix score of 42. The panel recommended the person ultimately selected. One of the panel members submitted a justification memorandum for the selecting official's approval and signature. The same panel member submitted memoranda that supported the selection of two female candidates (over the age of 40) for the other two Program Analyst positions.
The selecting official selected the individual recommended by the panel. The selectee was a younger male, of light complexion, who had no known prior EEO activity.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on March 10, 2014. The parties stipulated to a statement of the issues and to certain facts: Complainant was only challenging the selection of one individual, who was younger, a male, and of lighter complexion than Complainant and it was stipulated that the individual selected had no prior EEO activity. Twelve witnesses testified, including Complainant.
The AJ issued a decision, finding the "preponderance of the evidence did not support [Complainant's] theory" that the Agency "slotted" the selectee into a GS-07 Program Analyst position in the Contact Center for which he was allegedly much less qualified than Complainant, due to favoritism based upon his gender, color, age, or his lack of prior EEO activity."
The AJ found that the selecting official "credibly testified by his straightforward demeanor and by the substance of his testimony, consistent with his [prior] testimony, [and] that he relied upon the panel's rating of the candidates prior to selections and the recommendation." The AJ found that the "evaluation and selection process was not without flaws," but the AJ concluded "the record does not contain any probative evidence, and Complainant adduced none through the hearing, that disputed the panel members' use of legitimate, non-discriminatory rating factors." The AJ issued a decision in favor of the Agency.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed.
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. (Aug. 5, 2015).
Section 717 of Title VII and Section 633(a) of the ADEA apply to this complaint. The laws require that federal agencies make all personnel actions free of discrimination. See 29 U.S.C. �2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on sex or color"); and see 29 U.S.C. � 633(a) (all personnel actions in federal employment "shall be made free from any discrimination based on age"). The ADEA prohibits discrimination on the basis of age against individuals 40 years and older. Similarly, the EEO laws ban retaliation. Complainant can establish a prima facie case of retaliation by presenting facts that, if unexplained, reasonable give rise to an inference of discrimination.
To prevail, Complainant must 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).
We find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's non-selection. The selecting official testified that he selected the recommended candidate, who was the highest rated candidate, based on a scoring matrix. In this case, Complainant does not dispute that the Agency based its decision on the recommendation of the panel and the ranking process. Complainant did not provide evidence to show that the Agency's reasons were a pretext for discrimination. We find, therefore, that the record supports the Agency's decision.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
January 21, 2016
__________________
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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