0120112037
07-14-2011
Graciela R. Scambiatterra, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Graciela R. Scambiatterra,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120112037
Agency No. 2009-0019-R5
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s January 21, 2011 final decision concerning
an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant was employed as an Environmental
Scientist, GS-13-1-12, at the Agency’s Resource Conservation Recovery
Act (RCRA), Land and Chemical Division (LCD), Region 5 office in Chicago,
Illinois.
On December 3, 2008, Complainant filed the instant formal complaint.
Therein, Complainant alleged that the Agency discriminated against her
on the basis of sex (female) when:
1. on July 15, 2008, she was notified that management had not considered
her for the position of Environmental Protection Specialist, GS-13; and
2. she was not selected for the position of Environmental Scientist,
GS-13. 1
The record reflects that on May 23, 2008, Complainant applied for
the position of Environmental Scientist, GS-13, advertised under
Announcement No. Reg-5-MP-2008-0049. Complainant alleged that she was
not considered for a second GS-13 merit promotion vacancy position,
Environmental Protection Specialist (EPS), advertised under Announcement
No. Reg-5-MP-2008-0052. Specifically, Complainant alleged that she
did not submit an application for the position of EPS, GS-13, because
she had been falsely advised by the selecting official (SO) that she
would be considered for this position as long as she had applied for
the position of Environmental Scientist, because SO had stated that
the “two positions were linked.”
After the investigation, the Agency provided Complainant with a copy
of the report of investigation and notice of the right to request a
hearing before an EEOC Administrative Judge (AJ). In accordance with
Complainant’s request, the Agency issued a final decision on January
21, 2011, pursuant to 29 C.F.R. § 1614.110(b).
In its January 21, 2011 final decision, the Agency found no
discrimination. The Agency found that in regard to claim 1, Complainant
did not establish a prima facie case of sex discrimination because the
record reflects that only individuals who had been classified as EPSs,
GS-0028, were considered for promotion to the position of EPS, GS-13.
The Agency further found nevertheless that Agency management articulated
legitimate, nondiscriminatory reasons for its actions which Complainant
failed to show were a pretext for discrimination.
The Agency found that in regard to claim 2, Complainant established a
prima facie case of sex discrimination because the selectee was outside of
Complainant’s protected class. The Agency nevertheless found that the
Agency articulated legitimate, nondiscriminatory reasons for its actions
which Complainant failed to show were a pretext for discrimination.
Regarding claim 1, SO stated that the panel expressed to Human Resources
and the RCRA Branch Chief (BC) its desire to fill two positions, the
EPS and Environmental Scientist, “one per session, from among the
entire pool of applicants who applied. We sought to parallel the hiring
practice of EPA when we interviewed and selected applicants for the
Federal Career Intern Program where many different types of applicants
served as the selection pool for our inspector positions.” SO further
stated “since we had not received any objections to our plan, when
asked by people about the job announcement, I answered that our intent
was to fill the two positions from the entire pool of candidates,
and not one person from the respective lists for the GS-819/1301-13,
and GS-028-12 announcements. I did not direct anyone to either apply
or not apply for either of these two positions.”
SO stated that contrary to Complainant’s allegations, at the time of
the subject job announcements, the Acting Chief (AC) encouraged her staff
members, including Complainant, to apply for the job announcements for
which they were qualified during the Section meetings and individual
meeting concerning employees’ performance reviews. SO stated that
by e-mail dated June 25, 2008 to Human Resources, the VP Professional
Unit Labor Relations (VP) objected to the proposed plan “to consider
all applicants as a common pool, and did not want the positions filled
by ‘two EPSs or two engineers or scientists.’”
SO stated that after discussing VP’s email with Human Resources
and BC, “we dropped the idea of all the applicants as a common
pool.” SO stated that the panel was told to select one Environmental
Engineer/Environmental Scientist from the list of applicants under
Reg 5-MP-2008-0049 and one EPS from the list of applicants under Reg
5-MP-2008-0052. SO stated “further, we would promote a person whose
position description classified him/her as an environmental protection
specialist, and not an engineer/scientist who applied and made the list of
applicants under announcement Reg 5-MP-2008-0052. Please consider then
that any engineer/scientist who may claim that had they been among the
list of applicants for the EPS position, they would have been promoted is
not true. The panel filled the position with a person who was classified
as an EPS.”
Moreover, SO stated “I did not mislead [Complainant] because of the
level of her experience and because I wanted to limit the competition
for the Environmental Protection Specialist position. During the
interview, I did not inform [Complainant] that since she applied for
the environmental engineer/environmental scientist position, she would
be considered for the Environmental Protection Specialist position,
although she did not apply.”
Complainant’s immediate supervisor (S1) stated that during the
interview for the position of Environmental Scientist, she does not
recall Complainant being told by SO “that since she applied for
the Environmental Scientist position, she would be considered for
the Environmental Protection Specialist position, although she did not
apply.” S1 stated that no individuals were considered for the subject
EPS position without applying for the position. S1 stated that SO “did
not direct anyone to apply or to not apply.”
Regarding claim 2, SO stated that Human Resources “said when
making selections for GS-13 positions and above, we need to have three
. . . panel members conduct the interviews, including asking questions.”
SO stated that he set up a panel of three panelists, including himself,
to interview eight candidates. SO stated that following the interviews,
the panel “discussed the candidates, including their qualifications,
work experience, education…Panel members were unanimous that the person
selected was the best qualified candidate.” Specifically, SO stated
that the selection was based on the qualifications of the candidate
and the required knowledge, skills and abilities, which flowed from the
position description.” SO stated that the subject position “describes
the incumbent as a senior inspector, assigned to the most complex cases,
and one who leads Region 5 multi-media inspectors during inspections.
The duties also include report writing, which requires good writing
skills.”
SO acknowledged that both Complainant and the selectee have science
degrees and were hired as inspectors by the Agency. However, SO
stated that the selectee’s “combination of strong leadership
skills, supervisory experience, command of RCRA compliance monitoring
and enforcement, and multi-media work experience placed him above
[Complainant].” SO stated that the selectee “supervised site cleanups
and sampling at Superfund sties around the country. He was also a
Project Manager and Watershed Coordinator for the Arizona Department of
Environmental Quality. His multimedia work experience and leadership
skills are applicable and very valuable to conducting the job duties
of the subject environmental scientist position – especially leading
Regional multi-media inspectors during the inspection of complex,
regulated facilities.”
SO stated that he did not select Complainant for the subject position
because she was not best qualified. SO further stated that the panel
was more impressed with the selectee because of his leadership skills;
and his diverse and multi-media work experience. Moreover, SO stated
that Complainant’s sex was not a factor in his determination to select
the selectee for the subject position.
S1 stated that she was one of the three panelists for the position of
Environmental Scientist. S1 stated that the panel interviewed all eight
candidates on the Best Qualified List, including Complainant. S1 stated
that during the interviews, the panel took notes but the candidates
were not rated and ranked. S1 stated that following the interviews,
the panel “discussed the interviews, work experience, education, etc.,
of the candidates. We subsequently discussed all of the candidates and
made a recommendation for the selection.” S1 stated that the panel
unanimously recommended the selectee for the subject position because he
was best qualified. Specifically, S1 stated “I felt the Selectee was
far and away the best choice. The Selectee was the top recommendation for
all three panel members. The second recommended candidate was a male.”
S1 stated that the selectee has a Bachelor’s Degree in Environmental
Safety and Occupational Health Management, with a minor in Geology.
S1 stated that the selectee “had led the hazardous waste components
of multi-media inspections. Additionally, he worked on all types
of enforcement cases accumulating penalties of over $1 million
dollars.” S1 further stated that the selectee “had previously been a
Foreman/Supervisor for a contractor dealing with the Superfund clean-up.
He worked on large projects for Earth Tech Engineering Consulting Firm
from July 1999 to April 2001, including sampling projects for EPA.
He was also previously employed as a Project Manager for the Arizona
Department of Environmental Quality, from 2001 to 2003.”
S1 stated that Complainant is a graduate student from Northeastern
University. S1 stated that at the time Complainant was hired, she had
an Associates Degree in Criminal
Justice. S1 further stated that Complainant is an officer in the
Illinois National Guard. S1 stated that from May 1998 to September 2000,
Complainant was an environmental manager in the military and managed
environmental programs and issues for the Illinois National Guard.
S1 stated that Complainant also led the hazardous waste components of
multi-media inspections. Furthermore, S1 stated that Complainant was
not selected for the subject position because the selectee was “better
qualified than [Complainant] and the better fit for the position.”
Finally, S1 stated that she did not discriminate against Complainant
based on her sex.
AC stated that she was the third panelist for the subject position.
AC stated that the panel unanimously agreed that the selectee was the
best qualified candidate for the subject position. AC stated that
the selectee “had on-the-job experience in a leadership position.
[Complainant] has been a commissioned officer in the Illinois Air
National Guard for about 10 years and also has leadership experience.
During the amount of time I supervised [Complainant] she did all of her
inspections and took one extra projects, like the inspector handbook.
As the Region 5 RCRA enforcement contact to Illinois EPA, she appeared to
have a very good working relationship with the state. However, . . .
she did not develop any major cases under my supervision. I think
[selectee] had a little more leadership experience than [Complainant],
more leadership experience being in the area that we were looking for,
and more experience working in other media programs.”
Further, AC stated that during her interview, Complainant “interviewed
okay. She did not interview as well as [selectee]; his answers and the
examples he provided were more robust and pertinent to the advertised
position.” Moreover, AC stated that she did not discriminate against
Complainant based on her sex.
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).
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the Agency’s findings. 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
July 14, 2011
__________________
Date
1For ease of reference, the Commission has numbered Complainant’s
claims as claims 1 – 2.
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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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