0120161558
03-30-2018
Kiara R..,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kiara R..,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120161558
Agency No. FS201500768
DECISION
On April 7, 2016, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from a final Agency decision (FAD) dated March 22, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Training Technician, GS-1702-06, at the Agency's Columbia Basin Job Corps Civilian Conservation Center in Moses Lake, Washington. At the time this occurred, Complainant was going through Workforce Reduction and Placement (WRAPS), and was scheduled in February 2016, to become a Social Services Assistant, GS-0186-05, with two years pay retention. According to the position description of the later position, the incumbent served as an assistant to the Dormitory Manager, working with students housed in a dormitory. Complainant stated that the only difference between the two positions was the job title.
On August 28, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of sex (female), age (59), and reprisal for prior protected EEO activity under Title VII and the ADEA when on July 6, 2015, she learned that she was not considered nor selected for a 120-day detail assignment to the position of Social Services Assistant, GS-0186-07.
Social Services Assistants, GS-0186-078, serve as the team Lead and assistant to the Dormitory Manager by providing on-site supervision of students, leading a team of employees at the GS-06 level and below, identifying and distributing workload, and providing input into their appraisals.
Complainant contended that she is better qualified for the position than the selectee, and because of her previous EEO complaint, her age (59) and the fact that "they want to hire as many men as they can into the GS-07 positions," she was wrongly denied the opportunity to learn of and apply for the detail.
At the end 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
Complainant contends that she mistakenly requested a FAD instead of a hearing, and that therefore, she should be entitled to a hearing on the matter.
ANALYSIS AND FINDINGS
As an initial matter, Complainant is not entitled to a hearing for mistakenly requesting a FAD on the Right to a Hearing Form. Complainant filed an EEO complaint (FS-2015-00189) less than six months prior this complaint and successfully requested a hearing using the same hearing form in this case. Complainant need not be an attorney to understand the process for requesting a hearing as the form plainly requests the following options: "(1) withdraw your formal complaint; (2) request a final agency decision (FAD) by the USDA, based on the evidence of record; or (3) request an administrative hearing by an EEOC Administrative Judge (EEOC AJ)". Report of Investigation, Exhibit 3. Therefore, the Complainant's subsequent request for a hearing is denied.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra.
At her request, Complainant was working on the midnight shift. The detail was later created when the incumbent suddenly resigned, and the Agency needed someone to cover that dorm quickly. Complainant's second line supervisor (male, age 62), and third line supervisor (male, age 51) who jointly made the decision to choose the selectee (male and, according to the summary report of investigation, age 50) explained that they did not look outside of "swing shift" employees because of the urgency filling the position and because the selectee was qualified. She sent an email to her second and third line supervisors on July 6, 2015, asking why she was not considered for the detail. The third line supervisor responded by email on July 8, 2015, to Complainant and the second line supervisor, with a copy to the Union President (Complainant identified him as her representative in this case either right before or right after) that it was because she was working on the midnight shift and to please consider Complainant for the next GS-7 detail. Complainant received the detail for the same position in October 2015, and asked to leave it less than a month later. Complainant contends that her request to the midnight shift should not have impacted her ability to be considered for the "swing shift" detail.
Complainant may prove pretext by presenting documents or sworn testimony showing that the reasons articulated by the Agency for their actions are pretextual, i.e., not the real reason but rather a cover for sex or age discrimination. St. Mary's Honor Society, at 515, citing Burdine at 253. When the issue is nonselection, evidence of pretext can take the form of a showing that Complainant's qualifications for the position were plainly superior to those of the selectee. Hung P. v. Department of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to the Agency, comparative or statistical data revealing differences in treatment across gender-related lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015).
The Commission has long held that an employer has discretion to choose among equally qualified candidates so long as the selection is not based on unlawful criteria, in this case race and age. Complainant v. Department of Homeland Security, EEOC Appeal No. 0120141478 (July 31, 2015). An agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Complainant may be able to establish pretext with a showing that his qualifications were plainly superior to those of the selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainant has failed show that her qualifications were so plainly superior to the selectee so that discrimination could be inferred from her non-selection. Further, the record does not show she expressed her interest to the selecting officials for a future available detail position until after the selectee was given the position in question. In addition, the Agency's Human Resource Manuel (HRM) provides that Time-Limited Promotions (TLP) for 120 days or less may be filled noncompetitively to meet a short-term need.
The Commission finds that the Complainant failed to show a connection between the Agency choosing the selectee and a discriminatory animus towards the Complainant based on her sex, age or reprisal for previous EEO activity.2 The Complainant also failed to prove harassment for the reasons given above.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
March 30, 2018
__________________
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.
2 The Agency argues on appeal that the complaint is moot since Complainant eventually received a chance to detail into the open position after contacting the Agency's EEO Counselor. A complaint may be dismissed as moot where there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Wildberger v. Small Business Administration, EEOC Request No. 05960761 (Oct. 8, 1998) (citing County of Los Angeles v. Davis, 440 U.S. 625 (1979)). The subsequent detail opportunity did not "completely and irrevocably" eradicate the effect of not being considered for the detail in this case.
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