Frederick A. Nyanzi, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionFeb 6, 2009
0120065317 (E.E.O.C. Feb. 6, 2009)

0120065317

02-06-2009

Frederick A. Nyanzi, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Frederick A. Nyanzi,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01200653171

Agency No. FSIS-2005-00892

DECISION

Complainant filed an appeal with this Commission from the August 18,

2006 agency decision finding no discrimination.

Complaint 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. Specifically, complainant alleged

that the agency discriminated against him on the bases of race (Black),

national origin (African), sex (male), and age (55) when on May 20, 2005,

he was not selected for the position of Supervisory Chemist GS-1320-13,

under Vacancy Announcement No. FSIS-M-05-0055.

At the conclusion of the investigation, the agency issued a final

decision. See 29 C.F.R. � 1614.110(b). The decision concluded that

complainant failed to prove that he was subjected to discrimination as

alleged.

In its decision finding no discrimination, the agency found that

complainant had established a prima facie case of discrimination based

on his race, sex, and national origin but failed to establish a prima

facie case based on age. The agency found that complainant failed to

show that someone much younger than he filled the vacancy, noting that

the selectee was born in the year following complainant's year of birth.

The agency concluded that the agency had articulated a legitimate,

nondiscriminatory reason for its selection, noting that the selectee

was better qualified for the position based on her leadership skills,

and that the Selecting Official (SO) stated that the selectee's selection

was based on her assertiveness. The agency found no evidence to support

that complainant was discriminated against based upon any of his protected

classes.

BACKGROUND

Complainant applied for the position of a GS-13 Supervisory Chemist under

Vacancy Announcement, FSIS-MM-05-0055. Five candidates were referred

for consideration on the Promotion Certificate. The five candidates

were interviewed by the SO, the Laboratory Director (Interviewer 1),

and a GS-13 Supervisory Chemist (Interviewer 2).2 Some time after

the interviews were conducted, the SO independently selected the top

three candidates. The SO later met with Interviewers 1 and 2 regarding

his top three selected candidates. As a group, the three came up with

the traits that identified an effective supervisor. Thereafter, the SO

alone made the selection. He selected an Asian-American, Caucasian,

female who was in her fifties and a few months younger than complainant.

The selectee and complainant were both GS-12 chemists. Both were working

in St. Louis, Missouri, for the agency's Food Safety and Inspection

Service, Office of Public Health Science, Midwestern Laboratory.

CONTENTIONS ON APPEAL

Complainant asserts that the agency failed to articulate a legitimate,

nondiscriminatory reason for not selecting complainant making any

comparison of complainant's qualifications irrelevant. Alternatively,

complainant contends that he was better qualified for the position than

the selectee and that the agency's reasons for not selecting him were

pretextual, noting that the SO's reason that the selectee was a better

leader was not clear.

ANALYSIS AND CONCLUSIONS

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 complainant 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).

Although the initial inquiry of discrimination in a discrimination

case usually focuses on whether complainant has established a prima

facie case, following this order of analysis is unnecessary when the

agency has articulated a legitimate, nondiscriminatory reason for its

actions. In such cases, the inquiry shifts from whether complainant has

established a prima facie case to whether complainant has demonstrated,

by preponderance of the evidence, that the agency's reasons for its

actions were merely a pretext for discrimination. Id.; see also United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717

(1983).

With regard to claims of nonselection, EEOC Regulations require that any

personnel or employment record made or kept by an employer be preserved

by the employer for a period of one year from the date of the making

of the record or the personnel action involved, whichever occurs later.

See 29 C.F.R. � 1602.14. Furthermore, where a claim of discrimination

has been filed, the agency is required to preserve all personnel records

relevant to the charge until final disposition of the claim. Id.

Because this is an appeal from a decision issued without a hearing,

the agency's decision is subject to de novo review by the Commission.

The Commission finds that complainant was not discriminated against based

on his age. Both complainant and the selectee were in their fifties at

the time of the alleged discrimination, with the selectee being only a

few months younger than complainant. In finding age discrimination,

complainant's age "must have actually played a role in the employer's

decision making process and had a determinative influence on the outcome."

The evidence does not support such a finding. Reeves, supra, 530 U.S. at

141 (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).

The record shows that the selectee for the position (Caucasian and

Asian-American) was outside of complainant's protected class of race and

national origin. We therefore find that complainant has established a

prima facie case of race and national origin discrimination.

Complainant having established a prima facie case of national origin and

race discrimination, the burden next shifts to the agency to articulate

a legitimate, non-discriminatory reasons for its action. Burdine, 450

U.S. at 253. The Commission finds that the agency failed to provide a

legitimate, nondiscriminatory reason for its action. The affidavit of

the SO describes the merits of the selectee only in the broadest terms,

i.e., leadership and assertiveness. Notwithstanding the SO's vague

statements as to why he made his selection, we find that, given the

specific facts in this case, the agency has failed to set forth, with

sufficient clarity, reasons for complainant's nonselection such that

complainant has been given a full and fair opportunity to demonstrate

that the agency's reason was pretextual. See Parker v. United States

Postal Service, EEOC Request No. 05900110 (April 30, 1990); Lorenzo

v. Department of Defense, EEOC Request No. 05950931 (November 6, 1997).

Based on the record, complainant appears to possess similar or better

qualifications and experience than the selectee. The SO's reason

for choosing the selectee is not sufficiently detailed to provide

complainant the opportunity to demonstrate that those reasons were

a pretext for discrimination where complainant possesses at least

the same qualifications.3 The record contains no elaboration of

the SO's reason that he selected the selectee based on her leadership

ability and assertiveness and that the selectee was the best qualified.

Both complainant and the selectee hold doctoral degrees, although the

record reveals that complainant received his degree prior to the selectee.

Further, the record reveals that the selectee began working for the agency

as a grade level GS-12 chemist in October 2003, while complainant had been

working for the agency as a GS-12 chemist since August 2000. The record

reveals that the selectee just made the time-in-grade requirement of

having served 52 weeks at the GS-12 level before she could qualify for

the grade GS-13 and just made the 52 weeks of specialized experience

requirement at the next lower grade level. Further, complainant stated

in his affidavit that when the selectee first came to the laboratory,

she worked on his team which conducted sulfa analysis and that he

was one of the analysts who trained her on the sulfa analysis method.

Complainant also stated that he became and remained the selectee's mentor

on a variety of laboratory procedures. Both complainant and the selectee

had served as acting supervisory chemists for the agency and had worked

in supervisory positions outside the agency.

Regarding work performance, the record reveals that complainant received

several cash awards. He received one cash award in 2001, two each in

2002 and 2003, and one in 2005, while complainant received one cash

award in 2005. In addition, the record reflects that complainant had

a superior evaluation for the rating period ending in June 2005, and an

outstanding evaluation for 2004. The selectee in comparison had a fully

successful performance evaluation for the yearly rating period which

ended in June 2005. For her evaluation for the period from October

2003 to February 28, 2004, the selectee's performance was rated superior.

The selectee's evaluation form for the period ending on February 28, 2004,

however, also had a cross checkmark for a rating of fully successful

which was crossed out. Appraisal units on the selectee's evaluation

were changed with no explanation provided for the changes.

Regarding his performance, complainant also stated that he was part

of the team that assisted the laboratory in obtaining accreditation

and that during the accreditation process, he worked on sulfa analysis

methods, which was the only chemistry method that had met accreditation

standards, and that it was the first time that the laboratory received

accreditation.

The Commission also notes that records of the selection process are

missing. These omissions are especially problematic where complainant

appears to have similar or better qualifications and where the selection

procedures appeared not to have been fully established. Although form

questions were asked during the interviews, Interviewer 1 stated that

he asked additional questions of the candidates. However, there is no

documentation of those questions. Interviewer 1 stated that he stopped

taking notes during the first interview. Interviewer 2 stated that

he had not seen the job applications for any of the five candidates.

He stated that he was only asked to ask some questions at the interview

and explained that he did not retain his notes of the interviews.

Interviewers 1 and 2 stated that they were not involved in determining

who the top candidates were. We note that although the investigator

requested documentation of the method for rating and ranking applicants

for the position in question, we find there is no reliable documentation

explaining the method used by SO to rank applicants. The Vacancy

Announcement listed five Evaluation Criteria for the vacant position.

The application of these Criteria to each of the candidates cannot be

determined because of missing and incomplete interview notes and records.

Both Interviewer 1 and Interviewer 2 state they did not know what weight

was given to the interview process in determining the top three candidates

for selection. SO states that in determining the top three candidates

for selection, there was equal weight given between the application and

the interview. SO states he used his own scoring system for ranking the

interviews and applications' however, we find there is no indication

what that system entailed. Additionally, the record indicates that

complainant had a higher score for Evaluation Criteria than the selectee

with complainant receiving a score of 33/50 and the selectee receiving

a score of 30/50.4 The Evaluation Criteria score was determined by

SO only.

Moreover, notwithstanding the existence of the Evaluation Criteria

identified in the Vacancy Announcement, the Commission notes that after

the interviews were conducted, the top three candidates were also measured

against a list of traits that were supposed to identify an effective

leader. The record reveals that at a meeting following the interviews,

SO, Interviewer 1, and Interviewer 2, created a list of traits they

determined to be important to being a successful supervisor.5 We note the

record does not contain a list of these traits; nor does it contain the

evaluation of complainant and the selectee with regard to these traits.

Further, we note that the SO, Interviewer 1, and Interviewer 2 all stated

that they did not remember the entire list of traits developed.

In light of complainant's exemplary record of accomplishments, and

the agency's failure to provide an articulation of its reasons for not

selecting complainant for the position in question, we find the agency

failed to overcome complainant's prima facie case of national origin and

race discrimination. Therefore, the Commission finds that complainant

has established his claim of national origin and race discrimination

when he was not selected for the GS-13 Supervisory Chemist position.

Based on our finding of national origin and race discrimination, we need

not make a finding concerning whether complainant was discriminated

against based on his sex since any finding regarding discrimination

based on sex would not affect the final remedy.

Accordingly, the Commission AFFIRMS the agency's decision finding no

discrimination based on age. The Commission REVERSES the agency's

decision finding no discrimination based on national origin and race

and the agency is ordered to comply with the Order herein.

ORDER

1. Within 60 days of this decision becoming final, the agency shall

offer complainant the position of a Supervisory Chemist, GS-1320-13, or a

substantially equivalent position at the agency's Midwestern Laboratory

in St. Louis, Missouri, or at an installation of complainant's choice.

Complainant shall be given 15 days from receipt of the offer within which

to accept or decline the offer. Failure to accept the offer within the

15-day period shall be considered a declination of the offer, unless

complainant can show that circumstances beyond his control prevented a

response within the time limit.

2. Within 60 of the date this decision becomes final, the agency shall

determine the appropriate amount of back pay, with interest, and other

benefits due complainant, pursuant to 29 C.F.R. � 1614.501. Complainant

shall cooperate in the agency's efforts to compute the amount of back

pay and benefits due, and shall provide relevant information requested

by the agency. If there is a dispute regarding the exact amount of

backpay and/or benefits, the agency shall issue a check to complainant

for the undisputed amount within sixty 60 calendar days of the date the

agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

3. Within 180 days of the date this decision becomes final, the agency

shall provide eight hours training to SO regarding SO's obligations under

Title VII. If SO is no longer an employee of the federal government,

the agency shall furnish documentation of SO's departure date.

4. Within 180 days of the date this decision becomes final, the agency

shall consider taking appropriate disciplinary action against SO.

The agency shall report its decision to the Compliance Officer,

referenced herein. If the agency decides to take disciplinary action

it shall identify the action taken. If the agency decides not to take

disciplinary action, it shall set forth the reason(s) for its decision

not to impose discipline. If SO has left the agency's employment,

then the agency shall furnish documentation of SO's departure date.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision."

POSTING ORDER (G0900)

The agency is ordered to post in its Food Safety and Inspection Service,

Office of Public Health Science, Midwestern Laboratory in St. Louis,

Missouri copies of the attached notice. Copies of the notice, after

being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

February 6, 2009

__________________

Date

1This appeal has been re-designated with the above-referenced appeal

number.

2 The Commission notes that Interviewer 1 stated that he did not conduct

interviews and that the SO did. Interviewer 1 described his presence

during the interviews as seeking "to facilitate the selection process by

asking additional questions [he] thought to be relevant." He also stated

that he was at the interviews "to observe the process and assure focus."

3 A complainant can make a showing of pretext directly, by showing a

discriminatory reason more likely motivated the agency, or indirectly, by

showing that the agency's proffered explanation is unworthy of credence.

Burdine, 450 U.S. at 256.

4 We note it appears the selectee's score may have been changed from 27

to 30 and there is no explanation given for the apparent change in score.

5 The evidence concerning who called the meeting and how the traits were

developed is inconsistent.

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0120065317

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120065317