0120112413
04-12-2012
Karen D. Hairston, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Karen D. Hairston,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120112413
Agency No. DOL-10-03-099
DECISION
Complainant filed an appeal from the Agency's March 4, 2011 Final Decision concerning her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Warehouse Specialist, (federal contract position) and was an applicant for employment at the Agency's Mine Safety and Health Academy/Distribution Warehouse facility in Beaver, West Virginia. On July 7, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (48) when:
On March 17, 2010, Complainant learned that she was not selected for a secretary position (posted under Vacancy Announcement Nos. DE-l0-MSHA-010 and DE-l0-MSHA-011) despite being rated in "Category A" (meaning Complainant's certification scores fell between 90 and 100 points).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a Final Decision pursuant to 29 C.F.R. � 1614.110(b).
In its Decision, the Agency found that the selectees (S1 and S2) were selected because they were better qualified than Complainant for the positions at issue. The Agency found that S1 possessed working knowledge of the Department to Instructional Services and the Department of Mining Technology along with prior experience working for the Department of Student Services. S2 had military experience and administrative experience. The selecting official, SO, stated that his experience working with Complainant with respect to the Agency's travel software "was not very good" and that a specific travel claim for an employee had to be submitted multiple times before it was approved.
The Agency found that Complainant did not show that the Agency's reasons for its selections were false and a pretext for discrimination, nor did Complainant show that her qualifications were plainly superior to those possessed by the selectees. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant states that she had to help S1 with the travel software after she was hired and Complainant also had evidence that S1 was added to the certificate of eligible candidates after she was helped with her application
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. (November 9, 1999) (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").
To prevail in a disparate treatment claim such as these, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We find that Complainant failed to establish a prima facie case of discrimination based on her sex because both of the selected candidates were also female. We find that Complainant did establish a prima facie case of discrimination based on race and age because the evidence shows that the selectees were outside of Complainant's protected race and age groups. Nevertheless, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions with regard to both selection actions.
Specifically, we find that both Complainant and S1 (selected candidate for Vacancy Announcement DE-10-MSHA-010), were qualified for the position and both describe extensive administrative experience on the submitted applications. We note that both appear on the Agency's Certificate of Eligibles. The selecting official (SO1) states that S1 had more knowledge of the Department functions, classrooms, curriculum, and training functions. We note that in his statement, SO1 states, as the Agency noted, that he had worked with Complainant regarding the travel software used by the Agency and that the experience was not "good". SO1 found that S1 was more qualified for the position than Complainant and that is why S1 was selected. We do not find the evidence supports Complainant's contention that S1 was not included in the Agency's certificate of eligible candidates. On the contrary, we find that the documentary evidence, coupled with SO1's statement support the Agency's finding that S1's name appeared on the certificate and was not added later.
Further, SO1 states that S2 was a preference eligible veteran and that while both Complainant and S2 were on the certificate of eligible candidates for Vacancy Announcement DE-10-MSHA-011, S2 was selected based on her status as a veteran. We find nothing in the record shows that SO1's stated reasons for selecting S2 were false and a pretext to mask discrimination.
We consider, as did the Agency, that Complainant was among the best qualified candidates for both positions. The Commission notes that an employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Burdine, supra, at 259. Here, the weight of the evidence reveals that SO1 and SO2 chose the selectees because they believed S1 was better qualified and would be better equipped to meet the Agency's needs than Complainant. Further, the record confirms that S2 was selected based upon her status as a veteran. Complainant failed to rebut the Agency's reasons with any evidence that would undermine the Agency's explanation. Thus, the Commission finds no evidence in the record which would support a finding that the selections were tainted by discriminatory animus or that the reasons articulated by the Agency for its selections were mere pretext to hide unlawful discrimination. Accordingly, the Commission finds that Complainant has failed to show that she was discriminated against based on her race, sex or age as alleged.
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, finding no discrimination.
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
April 12, 2012
__________________
Date
2
0120112413
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112413