01996946Hamilton
04-04-2002
Helen T. Hamilton, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Helen T. Hamilton v. Department of Health and Human Services
01996946
April 4, 2002
.
Helen T. Hamilton,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01996946
Agency No. ACF-721-94
Hearing No. 100-97-7161X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD), concerning her equal employment opportunity (EEO) complaint of
unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges she was discriminated against on the bases of race (Black), sex
(female), and reprisal (prior EEO activity) when she was not selected:
(1) for the position of Branch Chief, Eligibility Branch, GM-101-14,
advertised under Vacancy Announcement (VA) Number 92-059A; and (2) for
the position of Supervisory Child Care Program Specialist, GS-101-14,
advertised under VA Number 92-75A.
BACKGROUND
The record reveals that complainant was employed as a Family Assistance
Program Specialist, GS-1101-13, Administration for Children and Families,
Office of Family Assistance, Department of Health and Human Services,
Washington, DC, since 1971. Both of the positions at issue were
in the Office of Family Assistance. Complainant filed a formal EEO
complaint with the agency on June 24, 1994, alleging that the agency
had discriminated against her as referenced above. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The agency designated the same person as the Selecting Official (SO)
(White, female) for both vacancies. Manager A (White, male) was
responsible for recommending the selectee for the position of Branch
Chief, Eligibility Branch. Manager A recommended Selectee A (White, male,
no known prior EEO activity) for the Branch Chief position. Manager B
(White, female) was responsible for recommending the selectee for
the position of Supervisory Child Care Program Specialist. Manager B
recommended Selectee B (White, female, no known prior EEO activity) to
serve as Supervisory Child Care Program Specialist. Both recommendations
were adopted by the SO.
The AJ apparently assumed that complainant established a prima facie case
of discrimination. However, the AJ found that the agency articulated
legitimate, nondiscriminatory reasons for its selection decisions, i.e.,
that the selectees were better qualified, and that the complainant failed
to show pretext. The FAD adopted the AJ's decision.
On appeal, complainant argues that the AJ erred in not drawing an adverse
inference from the agency's destruction of the Selectees' application
records; that the AJ erred in her analysis of complainant's statistical
evidence about the low number of Blacks at the GS-14 and higher level at
the agency; that the AJ failed to discuss her allegation of reprisal;
and that the AJ erred in not finding the agency's proffered legitimate
nondiscriminatory reasons to be pretextual and discriminatory with regard
to both positions.
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). We find that substantial evidence supports
the AJ's findings of no discrimination.
Disparate Treatment (race and sex)
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A complainant must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the complainant to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253.
Complainant may establish a prima facie case of discrimination in the
nonselection context by showing that: (1) she is a member of a protected
class; (2) she was qualified for the position; (3) she was not selected
for the position; and (4) she was accorded treatment different from
that given to persons otherwise similarly situated who were not members
of her protected group. Williams v. Department of Education, EEOC
Request No. 05970561 (August 6, 1998); Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002 (September
18, 1996). Complainant may also set forth evidence of acts from which,
if otherwise unexplained, an inference of discrimination can be drawn.
Furnco, 438 U.S. at 576.
Branch Chief, Eligibility Branch Position
To begin with, complainant argues, on appeal, that the AJ erred in failing
to draw an adverse inference from the failure of the agency to provide
Selectee A's application for the record. The agency acknowledged it
had been destroyed during the regular course of business. The AJ
rejected complainant's argument that the absence of Selectee A's
application in the record cast suspicion on Manager A's testimony,
finding that the circumstances did not warrant sanctioning the agency.
The AJ declined to conclude that Selectee A's application, if produced,
would have reflected unfavorably on the agency. The agency claimed that,
absent a specific request to retain the files, the policy for promotion
packages was to retain the files for two years before destroying them
in accordance with Office of Personnel Management regulations. Thus,
all of the applications, concerning VA Number 92-059A, were destroyed
in the normal course of business. The AJ concluded that the agency was
not at fault for the personnel office's failure to retain the records,
concerning VA Number 92-059A, and therefore excused the agency's actions.
Complainant argues that the agency was on notice of its obligation to
maintain all files pertaining to complainant's EEO claim no later than
June 27, 1994, when her formal complaint was received by the agency's
EEO office. The AJ recognized that the EEO office did not direct the
personnel office to put Selectee A's file aside until March 1995, five
months after the scheduled destruction of the VA Number 92-059A files.
However, the AJ found that she could not conclude that the personnel
office violated the applicable regulations or acted with illicit motives
when it destroyed Selectee A's file for VA Number 92-059A.
We agree with complainant that the agency had the duty to preserve
Selectee A's file, and that the agency breached the duty. However,
the question is whether, under the circumstances, the AJ abused her
discretion by not drawing an adverse inference against the agency.
In our view, most significantly, the AJ noted that other evidence in
the record substantially filled the void created by Selectee A's missing
employment application. Complainant has not shown otherwise. Accordingly,
we conclude that the AJ did not abuse her discretion in declining to draw
an adverse inference from the failure of the agency to provide Selectee
A's application.
With respect to the complainant's nonselection for the Branch Chief,
Eligibility Branch position, it is undisputed that complainant established
a prima facie case. Indeed, complainant made the best-qualified list,
was not selected, and the person selected (White male) was not a member
of her protected group. The agency articulated as its legitimate,
nondiscriminatory reason for its action, i.e., that Selectee A was
better qualified.
Manager A based his recommendation on Selectee A's prior supervisory
experience, references, recent experience in a high ranking position
at the state level (Director of the Food Stamp Program for the State of
Texas), and outstanding interview performance. In addition, Manager A
testified that dramatic changes to various public assistance programs
made it particularly important for the Branch Chief to be knowledgeable
regarding how public assistance programs operated at the state and local
level and how Aid to Families with Dependent Children (AFDC) impacted
other assistance programs. Manager A explained that he therefore
attached great value to Selectee A's experience working with the Food
Stamp Program. On the other hand, Manager A testified that AFDC's recent
transformation rendered complainant's prior agency experience working
with the AFDC program less valuable. In addition, Manager A indicated
that he was not particularly impressed by complainant's interview, job
references, or the supervisory skills she demonstrated while serving
as Acting Chief of the Eligibility Branch. According to Manager A,
complainant's employment references, though generally positive, were
simply not as glowing as those provided on behalf of Selectee A.
Additionally, in Manager A's view, unlike Selectee A, complainant
during her interview, conveyed neither excitement nor a comprehensive
understanding of the sweeping policy changes impacting AFDC.
The AJ further found that complainant's attempts to refute Manager A's
criticisms of her performance as Acting Branch Chief were unpersuasive.
The AJ additionally found that complainant's argument that she was
more qualified than Selectee A for the subject position was unavailing.
The AJ found complainant's statistical evidence unpersuasive.
On appeal, complainant emphasizes that the AJ erred in not finding
Manager A's testimony, about the selection of Selectee A, suspect or
inconsistent, because it was not until preparation for the hearing that
Manager A finally provided a detailed explanation for his recommendation
of Selectee A. Complainant does not argue that the AJ was unaware of this
background underlying Manager A's testimony, nor does complainant give
any example of Manager A's testimony being inconsistent. The Commission
notes therefore that the credibility determinations of the AJ are
entitled to deference due to the AJ's first-hand knowledge, through
personal observations, of the demeanor and conduct of the witnesses
at the hearing. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990).
Complainant also argues that Manager A's evaluation of complainant's
performance during the interview was highly subjective, and that Manager
A's reliance upon subjective references of Selectee A was inappropriate.
However, an employer has greater discretion when filling management
level or specialized positions. Wrenn v. Gould, 808 F.2d 493, 502 (6th
Cir. 1987). The Commission has recognized that the use of subjective
criteria may offer a convenient pretext for unlawful discrimination.
Wilson v. U.S. Postal Service, EEOC Request No. 05921062 (August 12,
1993). On the other hand, subjective criteria are frequently relied upon
in promotions to supervisory or management positions, and the use of
such criteria is not, in and of itself, an indicator of discriminatory
motivation. Fodale v. Department of Health and Human Services, EEOC
Request No. 05960344 (October 16, 1998). Subjectivity in the selection
of a manager is inevitable because the qualities of a good manager are
not readily susceptible to quantification.<1>
In addition, complainant argues that she had superior qualifications to
Selectee A. The Commission thus notes that in nonselection cases, pretext
may be found where the complainant's qualifications are demonstrably
superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). However, an employer has the discretion to choose among
equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981).
Complainant emphasizes that she actually performed in the position and
demonstrated the knowledge, skills, and abilities necessary for the
position. Complainant especially emphasizes her extensive knowledge of
the AFDC program, and that she worked with food stamps and Medicaid and
a myriad of other programs. It is undisputed that complainant was well
qualified and had made the best qualified list. Although complainant
emphasizes her extensive knowledge of the AFDC program, Manager A
testified that AFDC's recent transformation rendered complainant's
prior agency experience working with the AFDC program less valuable.
Complainant also attempts to negate Manager A's assessment of her
management skills, while serving as Acting Chief of the Eligibility
Branch, by emphasizing her performance as Acting Chief of the Compliance
and Litigation Branch. However, the position in question in the complaint
is the Chief of the Eligibility Branch, and we therefore do not think
Manager A was unreasonable in relying on an assessment of complainant's
performance as Acting Chief of the Eligibility Branch. Accordingly, we
are unable to conclude within the parameters of the substantial evidence
test that complainant's qualifications were demonstrably superior to
Selectee A's.
In support of her appeal, complainant further argues that statistical
evidence supports her claim of the agency's pattern of discrimination
in failing to hire and promote blacks at higher grade levels.
Complainant cites the agency's affirmative action report and the text
of the subject vacancy announcement as evidence that African-American
females were underrepresented in high level positions in the agency.
Complainant emphasized that there were few Blacks at the grade 14
and higher levels, which according to complainant underscores the
discriminatory atmosphere at the agency. However, as the AJ indicated,
since the instant complaint is an individual disparate treatment case,
the focus is whether complainant was the victim of discrimination;
and that evidence of underrepresentation of African American females as
a group does not necessarily prove that each member of that group was
subjected to individualized instances of discrimination, particularly in
the presence of otherwise justifiable reasons. Complainant disagrees
with the weight the AJ gave her statistical evidence. While we agree
with complainant that her statistics could suggest a discriminatory
atmosphere at the agency, the agency's legitimate nondiscriminatory
reasons are entitled to greater weight. Even complainant recognizes
that statistical proof alone may not make her case.
Finally, we note that an employer has the discretion to determine how
best to manage its operations and may make decisions on any basis except
a basis that is unlawful under the discrimination statutes. Furnco,
supra; Nix v. WLCY Radio/Rayhall Communications, 738 F.2d 1181 (11th
Cir. 1984). An employer is entitled to make its own business judgments.
The reasonableness of the employer's decision may of course be probative
of whether it is pretext. The trier of fact must understand that the
focus is to be on the employer's motivation, not its business judgment.
Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979).
Supervisory Child Care Program Specialist Position
The record also lacked copies of complainant's and Selectee B's
applications for the position at issue. Like the file for the Eligibility
Branch Chief vacancy, the promotion files for the vacancy at issue were
destroyed after the two-year retention period had elapsed. However,
the record included copies of applications complainant and Selectee
B submitted for VA Number 92-109A, another Branch Chief vacancy in the
Office of Family Assistance advertised within the same general timeframe.
Given the proximity in time and the similar nature of the vacant jobs,
the AJ inferred that the applications were substantially similar, if
not identical to the applications submitted for the positions at issue.
The AJ also noted that complainant's formal complaint misidentified
the vacancy announcement for the subject position as VA Number 92-109A,
instead of the correct number, VA Number 92-75A. As a result, the AJ
indicated that the EEO Investigator included applications in the ROI from
the promotion file for VA Number 92-109A rather than documents from the
promotion file for the appropriate vacancy announcement, VA Number 92-75A.
While complainant argues on appeal that the AJ erred in not drawing
an adverse inference against the agency, we find that the AJ did not
abuse her discretion in declining to do so. Complainant does not argue
that the AJ erred in finding that the position in VA Number 92-109A
was similar to the position involved in VA Number 92-75A, and that the
Vacancy Announcements were proximate in time.
With respect to the complainant's nonselection for the Supervisory Child
Care Program Specialist position, it is undisputed that complainant
established a prima facie case. Indeed, complainant made the
best-qualified list, was not selected, and the person selected (White)
was not a member of her protected group. The agency articulated a
legitimate, nondiscriminatory reasons for its action, i.e., that Selectee
B was better qualified.
According to Manager B, the Child Care Policy Branch had been created
to draft regulations, analyze policy, and provide guidance to localities
regarding three relatively new child care programs the agency regulated.
Manager B found that Selectee B had more specialized knowledge of the
child care programs than the other candidates. Manager B indicated that
she had supervised Selectee B for about one year while Selectee B served
in a nonsupervisory position drafting regulations and analyzing policies
regarding these programs. Moreover, Manager B indicated that, for nearly
two years immediately preceding the selection, she supervised Selectee
B, while Selectee B performed the duties of the position at issue.
In Manager B's view, she observed and rated Selectee B's performance as
outstanding, which led her to conclude that Selectee B was exceptionally
well-qualified to serve as Supervisory Child Care Program Specialist.
The AJ found that complainant failed to refute Manager B's testimony,
and that there was no dispute that complainant, unlike Selectee B,
lacked specialized experience with the particular child care programs
under the Child Care Branch's purview. The AJ further concluded that
complainant failed to demonstrate that her qualifications were clearly
superior to Selectee B's.
On appeal, complainant argues that she was better qualified than Selectee
B, and that Manager B failed to give proper weight to complainant's
experience. In addition, complainant argues that Selectee B had an
unfair advantage having worked for Manager B.
Complainant does not dispute that she lacked specialized experience with
the particular child care programs under the Child Care Branch's purview.
Complainant also acknowledged that Selectee B and she had comparable
degrees and performance ratings. Although Selectee B had the advantage
of having worked for Manager B, it was not an improper advantage.
An employer has the discretion to determine how best to manage its
operations and may make decisions on any basis except a basis that is
unlawful under the discrimination statutes.
Reprisal
In general, claims alleging reprisal are examined under the tripartite
analysis first enunciated in McDonnell Douglas. See Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F.Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt, and Coffman
v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20,
1997), a complainant may establish a prima facie case of reprisal by
showing that: (1) she engaged in a protected activity; (2) the agency was
aware of her protected activity; (3) subsequently, she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse action. The causal connection may be
shown by evidence that the adverse action followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. Simens v. Department of Justice, EEOC Request No. 05950113
(March 28, 1996) (citations omitted).
The AJ essentially found that in view of all of the evidence in the
record, the agency did not discriminate against complainant on any
grounds, including reprisal for her prior EEO activity.
Complainant essentially argues, on appeal, that she established a prima
facie case of discrimination based on reprisal. According to complainant
she previously filed two EEO complaints, one in 1984 and one in 1987. The
1987 complaint alleged that complainant was discriminated against based
on race when she was not selected for a Supervisory Program Specialist
Position, GM-14, in her present office. Her current supervisor
was selected. The 1987 complaint was investigated and subsequently
discontinued for administrative reasons. Complainant indicated that
management's overall attitude toward her changed after she filed her
first complaint and led management to retaliate against her by not
subsequently selecting her for promotion to GS-14.
On appeal, in attempting to show pretext, complainant emphasizes that
she and another employee testified about the tendency of the agency to
retaliate against employees who file complaints. In addition, complainant
states that the EEO Officer informed her that the SO had indicated
complainant would never be promoted. Complainant again reiterates that
her credentials were superior and she should have been selected.
Even assuming arguendo that complainant established a prima facie case
of discrimination based on reprisal, as previously discussed, the agency
articulated legitimate, nondiscriminatory reasons for its actions, and
complainant failed to show pretext. Complainant's statement about the
EEO Officer telling her that the SO stated complainant would never be
promoted is unsubstantiated.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, we AFFIRM the
agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 does not extend your time
in whichto 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
April 4, 2002
__________________
Date
1 Complainant also argues that Selectee A unfairly received a second
interview. However, this took place only after Manager A had recommended
Selectee for the position in question and was at the request of the
Deputy Director of the Office of Family Assistance (not the SO).