0120123510
01-30-2013
Garey Holmes, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Garey Holmes,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120123510
Agency No. GIPSA-2011-00724
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 2, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Shift Supervisor, GS-1980-11, at the Agency's Grain Inspection, Packers, and Stockyard Administration, New Orleans Field Office in Destrehan, Louisiana.
On July 13, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of age (over 40) when:
on June 1, 2011, he learned he was not selected for the position of Industrial Specialist, GS-1150A-11/12, advertised under Vacancy Announcement Number (VAN) 6GR-2011-0043.
After the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The record reflects that an assigned AJ cancelled the hearing request and remanded the formal complaint to the Agency. 1 Thereafter, the Agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. The Agency found that Complainant established a prima facie case of age discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext. Specifically, the Agency found that the two selectees were selected for the subject positions based on their experience and high scores.
The Assistant Field Office Manager, also Complainant's second-line supervisor, was the selecting official for the Industrial Specialist position. The record reflects that seven candidates, including Complainant, were considered as qualified for the subject position and referred to the selecting official for consideration. The selecting official stated that he implemented a panel of five Agency officials, including himself. The selecting official stated further that after the panel interviewed seven candidates via telephone, the panel individually ranked the candidates. Specifically, the selecting official stated "the way we rated each individual question, we looked into their actual responses and how we thought their overall response applied to the question and what we perceived from that as their possible ability to do the work. We had the application itself and gave them the possibility of points in that evaluation to equal two other questions." The selecting official stated that the panel recommended the two highest ranking selectees for the subject position, and he agreed with its recommendation.
The record reflects that the two selectees were the top two ranked with overall scores of 524 and 455 respectively, while Complainant was ranked last with an overall score of 397. The selecting official stated that both selectees had passed the metrology training. The selecting official stated that the first selectee "was the only individual that spelled out everything on his application and who received the most possible points on the application itself. [Selectee's] overall responses to every question were solid. I had him maxed out on the question about his assertiveness and how he would deal with the job and handle the whole process. He came across as more of an authority figure when we asked the question. [Selectee] had probably the most hands-on experience dealing with the scales."
The selecting official stated that the responses to questions of the second selectee and his general knowledge of the type of Industrial Specialist work "seemed pretty much on par with [selectee's]. His application did not have quite as much [selectee's] but he still had quite a bit of detail. He did not have a college degree, so he fell a little short of [selectee]. He was direct and to the point on most of the questions, and they matched well with the responses I would have expected."
The selecting official acknowledged that Complainant's ranking was similar to the second selectee's rating. However, the selecting official determined that Complainant "was a little less qualified than [second selectee], although that is not what the overall panel decided. [Complainant's] responses were not that clear related to the interview questions, and his application was not really well prepared and related to the position. He had taken the metrology training, but had not passed it to my understanding." Moreover, the selecting official stated that Complainant's age was not a factor in his determination to select the two selectees for the subject positions.
With respect to Complainant's allegation that the two selectees were pre-selected, the selecting official denied it. Specifically, the selecting official stated that the two selectees "had been in the same Equipment positions for years and assisted the Industrial Specialist as well. At the time, the selectees were working in the Equipment positions, [named female employee] was promoted so these guys had to take over her area and we had a whole lot more of that kind of work that needed to be covered. Sticking with what we had done in the past, we covered that work with the Equipment personnel."
One of the panelists stated that the panel was given a list of questions to ask the candidates and rate them "according to their responses to those particular questions. I did it with the Industrial Specialist position in mind with a focus on their experience, knowledge, and familiarity with the day to day operations of that position." The panelist stated that the panel recommended two selectees because they were best qualified. Specifically, the panelist stated that the selectee had the best overall knowledge of the subject position and "he sold himself better than anybody through his clear answers that pertained to the question asked. He was explicit in his explanations, and almost went over and beyond in explaining his knowledge on that particular question. [Selectee] had hands-on experience participating in scale inspections. He grasped what he had been doing in those inspections more than some of these other guys did."
The panelist stated that although the second selectee was her third choice, the second selectee "was good on general knowledge of the position and the basics, but struggled on anything more than the basic terminology and knowledge. I rated him as 'Meets Requirement' for most of those questions."
The panelist stated that Complainant "was knowledgeable and I know he has worked with the Industrial Specialist quite a bit. From his interview, what I gathered is that he was mostly the person who ran the equipment and was not as much interested in the full operations of the job. He said he had not tested many of the scales we were asking about. I think he just did not come across in the interview with his full knowledge, and did not express his knowledge in a way we needed to hear it. He did not know anything about the databases we use; he talked about doing everything with a pen and pencil. He did not come across as having a good knowledge of the job in its current state." Furthermore, the panelist stated that Complainant's age was not a factor in the panel's decision to recommend the two selectees for the subject positions.
Complainant, on appeal, argued that the Agency erred finding no discrimination. For instance, Complainant argued that he was more qualified than the two selectees because he has more than fifteen years of experience and "I have already successfully progressed through the GS grade system, having attained the position of GS11/8 and consistently receiving a superior rating in the performance evaluations." Complainant further argued that there was pre-selection involved in this case because "all applicants with significant experience in the posted position were not selected; and are over 50 years of age. This lends itself to the appearance of age discrimination."
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. Complainant, on appeal, argued that pre-selection was involved, we note that Complainant has not provided any evidence which suggests that the selectees were preselected. However, even if pre-selection took place, we have found that pre-selection, per se, does not establish discrimination when it is based on the qualifications of the selected individual and not discriminatory animus. McAllister v. United States Postal Service, EEOC Request No. 05931038 (July 26, 1994).
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
January 30, 2013
__________________
Date
1 The record reflects that Complainant does not challenge the assigned AJ's decision to cancel his hearing request and remand the instant case to the Agency for an issuance of a final decision. Therefore, we will not address this issue in the instant case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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