0120090881
05-14-2009
John G. Pedicini, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
John G. Pedicini,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120090881
Agency No. FNCS-2006-02271
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's October 23, 2008 final decision concerning his equal employment opportunity (EEO) complaint alleging 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.
During the period at issue, complainant was employed as a Financial Management Analyst, GS-0501-11, at the agency's Financial Management Division (FMD), Northeast Regional Office (NERO).
On July 3, 2006, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the basis of reprisal for prior EEO activity when:
management placed obstructive conditions on complainant's access to career advancement training.
At the conclusion of 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). In accordance with complainant's request, the agency issued a final decision on October 23, 2008, pursuant to 29 C.F.R. � 1614.110(b).
In its October 23, 2008 final decision, the agency dismissed complainant's complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The agency nevertheless addressed the instant complaint on the merits. The agency found that complainant did not establish a prima facie case of reprisal discrimination. The agency further found that assuming arguendo complainant established a prima facie case of reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
With respect to complainant's allegation that "obstructive conditions" were placed on his access to the Audit Command Language (ACL) training, complainant's second-line supervisor (2) stated that complainant's accusations are "incorrect." S2 stated that, on April 21, 2006, he had an e-mail sent to the division mailing list indicating that FMD had an additional license to train an employee on ACL, and instructed anyone who was interested in the training to submit a paragraph on why they would like to learn ACL and what they would use it for. The record reflects that complainant responded in an e-mail on the same day indicating that he was interested in the training. S2 stated that he implemented a committee to review the qualifications of the candidates, including complainant, who expressed interest in obtaining the ACL training. S2 stated that the committee "agreed that they would develop criteria based on the relative skills and experience of those interested in the training, which they did. They sought to solicit responses to the criteria to evaluate the candidates in the process of determining their selection. In the dynamic process of meetings and our interaction the group determined to weight the criteria and use a numeral score. The weighting and numerical scoring, the determination of a clear demarcation of the bests candidate and the use of a drawing as needed, was the group's agreed to methodology."
S2 stated that the committee recommended that an identified candidate (C1) be selected for ACL training but C1 withdrew her interest. S2 stated that the committee then made a determination that complainant should be selected for ACL training. Furthermore, S2 stated that he did not consider complainant's prior protected activity "in any context regarding ACL or any other 'opportunity' to obtain career advancement training."
One of the three committee members (CM) stated that he was asked to be on the committee for ACL training. CM stated that the committee "agreed to a selection criteria of three questions with weight factors: Financial/Program Skill (40%), Software/Database Skills (40%) and Analytical Skill (20%)." CM stated that the committee also agreed there must be a difference of "2.0 or greater" for the results to be significant. CM stated that the committee recommended that C1 for ACL training but she withdrew her name from consideration. CM further stated "ultimately, the Complainant was chosen. In that regard his access was not obstructed, since he was chosen for the position." CM stated "I have been asked what the policy/practice is concerning ACL training and is the Complainant's situation the usual circumstances, and if not, why. ACL is a new tool available for our use therefore I cannot answer the above."
CM noted that S2 sent out a memorandum to the three candidates, including complainant, that included the wording "should there be no conclusive choice resulting from the evaluation your three name will be placed in a hat and the one drawn at random will get the training." CM stated that he was approached by complainant concerning S2's memorandum. Specifically, CM stated that he was "not aware of any such statement. I approached the other two members and asked if they were made aware of that statement and they stated no they were not made aware." CM stated that the committee then met with S2 to discuss the memorandum, and two identified members agreed with S2's assessment and conclusion that it would not be a factor.
Another committee member (CM2) stated that the committee came to an agreement that the criteria was to state why an individual wanted the training and then to describe their experience in several areas, such as financial analysis. The criteria was to be ranked by [identified third member], [CM], and me. If the rankings were too close, the selection would be made at random." CMS stated there were no disagreements among committee members concerning the selection criteria. CMS stated that she felt that the decision making process was "fair." With respect to complainant's allegations that "obstructive conditions" were placed on his access to ACL training, CMS stated "I do not believe that it was meant to place obstructive conditions on his access."
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).
The agency articulated legitimate, nondiscriminatory reasons for its actions which complainant did not prove were a pretext for discrimination, and that complainant has not demonstrated that these reasons were a pretext for discrimination.
On appeal, complainant 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.1
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 (S0408)
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 (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
May 14, 2009
__________________
Date
1 Because we affirm the agency's finding of no discrimination on the merits for the reasons stated herein, we find it unnecessary to address the disposition of the instant complaint on procedural grounds (i.e. failure to state a claim).
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0120090881
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090881