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
9
0120065317