0120142167
09-01-2016
Hester S.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hester S.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120142167
Hearing No. 430201300084X
Agency No. ARBRAGG11NOV04956
DECISION
Complainant timely appealed the Agency's June 30, 2014 final decision concerning her equal employment opportunity (EEO) complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist (GS-0201-09) at the Director, Family and Morale, Welfare and Recreation ("DFMWR") Soldiers and Family Assistance Center, Army Community Service Center located in Fort Bragg, North Carolina.
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (56) when:
On October 27, 2011, she became aware that the Director of the Soldier and Family Assistance Center (GS-13) ("S1"), had not selected her for the position of Social Services Assistant Coordinator (GS-0101-11).
Complainant's first line supervisor ("S1"), the Director of the Soldier and Family Assistance Center (GS-13) (Hispanic, female, 55) hired the majority of her nine person staff, including Complainant, through the Veterans' Readjustment Act ("VRA") which allows supervisors to appoint "qualified" veterans for a position without posting a vacancy announcement or following competitive hiring policies, such as the Priority Placement Program ("PPP"). S1's supervisor, the Director of Army Community Service (GS-14) ("S2") stated that she and S1 "hired employees across our organization using VRA where possible because it is easier to do so... All that is required for a VRA appointment is to put in a name select, have a resume, and submit the action to human resources."
It was common knowledge among S1's staff that the Social Services Assistant Coordinator (black, male, mid 50s) intended to retire in 2011. Complainant and several other GS-09 level staff voiced interest in the position, which would be a significant promotion at GS-11. Complainant's coworker ("C1") (white, male, 35) was the newest VRA appointee, having worked in the position of Information Referral and Follow-up Coordinator ("IRFC") for two years. C1 was the only white employee in the office and one of the youngest; the majority of others were African American over age 40. C1 was vocal about his interest in the SSA position, and even told other staff members that S1 assured him he would be awarded the position months before it was announced. Complainant and her coworkers believed S1 and S2 afforded C1 special treatment, predating his appointment to the IRFC, which another coworker sought but S1 allegedly "held" for C1 until he could retire and gain veteran status. When C1 started as an IRFC, it was widely believed that he was unqualified for his position. In February 2011, S1 chose C1 to accompany her and the prior SSA Coordinator for a week of training as part of a new pilot program, the Tailored Caregiver Assessment and Referral Process (TCARE) for caregivers. None of her other staff were afforded the opportunity to take TCARE training.
On October 27, 2011, S1 convened a staff meeting, then proceeded to blindside Complainant and the rest of her staff by announcing that C1 was the new Social Services Assistant Coordinator ("SSA") effective the following week. It was upsetting and surprising because C1 lacked the necessary background in social work while S1 had a pool of interested candidates with higher qualifications. Although the Agency argues that Complainant would not have been a strong candidate for the position since she was in the GS-2010 series, working in HR with members of the military, whereas the SSA Coordinator focused on social services related work, and engaging with civilian military families, Complainant cites years of comparable experience in prior positions that would make her a better candidate than C1. There were several GS-0101 series employees who wanted the SSA position as well; one of which, the Education Coordinator (black, male, mid 50s), held a master's degree in social work and several years of civilian work experience as a social worker. Another of these employees held the same position as an IRFC (black, male, mid 50s) who had been working much longer than C1.
The next day, S1 personally called Complainant to apologize how the appointment process was handled. She also convened another staff meeting that week to clear the air. S1 apologized for her decision but said it was too late to do anything about it because she already offered C1 the position. When her staff demanded to know why C1 was picked over everyone else for the SSA position, S1 explained that she appointed C1 under the VRA, so the Agency was not required to list the vacancy. She also explained that C1 was the most qualified because he received TCARE training. The SSA position did not have an official description at that time, and Complainant and others argued that TCARE training was not a requirement of the SSA position. They also argued that the TCARE training was pretext for hiring C1, as he was under qualified.
This matter was initially scheduled for a hearing before an EEOC Administrative Judge ("AJ"), as Complainant requested a hearing after the Agency investigated her complaint. The AJ, acting properly and within the scope of his authority, dismissed Complainant's hearing request after she failed to timely submit a pre-hearing report in accordance with the AJ's Scheduling Order. See 29 C.F.R. � 1614.110(b). The AJ remanded Complainant's complaint to the Agency, and directed the Agency to issue a Final Decision on the merits. The Agency found that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant filed a premature appeal, which was perfected when the Agency issued the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 consideration 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Since the instant complaint involves an allegation of disparate treatment and since the Agency articulates a legitimate nondiscriminatory reason for not selecting Complainant, it is Complainant's burden to demonstrate by a preponderance of the evidence that the Agency's non-selection was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S 502 (1993).
In a non-selection case, pretext may be demonstrated by a showing that Complainant's qualifications are observably superior to those of the selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Dep't of Education, EEOC Request No. 05970561 (August 6, 1998). This metric cannot be applied in the instant complaint because the alleged discriminatory hiring was a VRA appointment. As competitive hiring practices do not apply to VRA appointments, C1 did not have to have the best background and skill set for the position, he simply had to be qualified. Similarly, Complainant and her coworkers' allegations that S1, S2, and C1 knew well in advance that C1 would be appointed to the Social Services Assistant Coordinator ("SSA") position relates to the competitive hiring process, and is not relevant in a scenario where the appointee does not have to be the most qualified or compete for the position.
Complainant argues on appeal that the decision to select C1 for the TCARE training was discriminatory. Complainant (and her coworkers) alleges that S1 deliberately chose C1 and nobody else to accompany her and the previous SSA for TCARE training so that she could later use the experience as pretext for appointing him to the SSA position. We find that S1 provided a legitimate nondiscriminatory reason for selecting C1 to attend TCARE training as an "alternate." Specifically, as an IRFC, C1's role included social work, unlike Complainant's position in Human Resources. S1 and S2 also cited a directive on the new TCARE program, which provided office management should train an "alternate" TCARE-trained staff member for the office and to select an IRFC if more than one was working at the office. Of the two IRFCs S1 chose C1, even though he had less tenure than his counterpart (Black, male, mid 50's) because his counterpart was subject to a pending disciplinary action at that time. S1 also explained the reason she weighted TCARE training so heavily in her appointment to the SSA position is that their office, Social Services, was assigned to conduct TCARE. Someone in Social Services must be trained because it was the new assessment tool for family members of returning military to determine stress. TCARE assessments would go to the SSA position.
The EEOC does not govern or enforce the VRA. S1's use of the VRA to sidestep the competitive hiring process and appoint C1 constitutes a legitimate nondiscriminatory reason pursuant to our regulations. Further, we find Complainant failed to demonstrate that S1's explanation for choosing C1 to take the TCARE training was pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 1, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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