0120091772
08-26-2009
Joseph I. Mafnas, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Joseph I. Mafnas,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120091772
Agency No. RD-2008-00373
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 23, 2009 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as an Engineer Technician, GS-12, at the agency's Rural Development in Roanoke, Virginia.
On April 11, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (Asian), national origin (Pacific Islander), color (brown), and age (over 40) when:
on or about January 25, 2008, he was notified of his non-selection for the position of Public Utilities Specialist, GS-1130-12/13, Vacancy Announcement No. 07-RUS-61JL, located in Roanoke, Virginia.
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 January 26, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its January 23, 2009 final decision, the agency found no discrimination. Without addressing the prima facie case analysis, the agency found that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
The selecting official (SO) stated that once complainant made him aware that he had applied for the position of Public Utilities Specialist, GS-12/13, he "had a question because based on my knowledge I would have thought he was qualified and therefore on the certificate." SO further stated that he contacted Human Resources (HR) because "I was worried a mistake was made." After contacting HR, SO stated that he learned that complainant did not meet the criteria for the subject position. Specifically, SO stated that HR believed that complainant lacked financial experience because it was not in his resume. SO stated "we've had ongoing issues with HR regarding the financial experience required for certain positions and began working with them in the summer of 2007 in changing our position descriptions." SO stated that around the April/May 2008 time frame, the position descriptions were changed to make it "more clear about what kind of financial experience is required. The change in the position descriptions was not the result of the Complainant's complaint or otherwise." SO stated "in our opinion, HR was strictly enforcing the experience requirements not just for the complainant, but across the board because others were excluded that I would have thought were qualified but because HR was stringent in applying the qualifications and criteria, they did not qualify. Now, it is more clearly defined for the current jobs we advertise."
SO stated that in response to complainant's assertion that he was more qualified than the selectee "is very subjective; I've known him for a long time and he is highly experienced. I thought he would have qualified for the job, but I don't think I would venture to say that he is more qualified." SO stated that he made the determination to choose the selectee for the subject position because he was "the most highly qualified applicant of the ones that was considered and interviewed."
The Chief of Headquarters Personnel Services Branch (C1) stated that as part of HR "it is our responsibility to access the qualifications of candidates as it relates to vacancy announcements." C1 stated that the primary purpose of the subject position is to be a representative of the Utilities Program, specifically its telecommunications program, to potential applicants and borrowers in an assigned area. C1 stated that the specialized experience requirements of the subject position "as described in the vacancy announcement indicated that applicants' experience must demonstrate knowledge of the management, financial and engineering operations, and maintenance operations within the utilities field. At both grade levels the applicants had to demonstrate experience and be knowledgeable in all facets of utility operations because of the critical link between the borrowers and the agency."
Further C1 stated that in his application, complainant did not provide sufficient evidence that his background encompassed the specialized experienced required to meet the basic qualifications of the subject position. C1 stated "it was determined that [complainant] lacked the level of knowledge and experience in the areas of financial assistance and business operations management." C1 stated that after receiving a request from complainant, his application was reviewed again by a named HR Specialist and referred to a named Team Leader. C1 stated "I concurred with their decision; [complainant] lacked the specialized experience for the position."
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).
We find that after a careful review of the record, the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Complainant, on appeal, argues that the agency improperly investigated his formal complaint. Complainant argues specifically that if the agency had analyzed all the events and affidavits, it would have concluded that pretext was employed to disqualify him from the subject position. However, the Commission determines that the investigation was properly conducted, and that 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.
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
August 26, 2009
__________________
Date
2
0120091772
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091772