0120091668
08-03-2009
Michael A. Bradley, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Michael A. Bradley,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120091668
Agency No. HHS-NIH-0193-2007
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 27, 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.
During the period at issue, complainant was employed as an Industrial Equipment Mechanic, WG-5352-10, at the agency's Office of Research Facilities, Division of Engineering, Public Works Branch, National Institutes of Health (NIH), in Bethesda, Maryland.
On May 15, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (African-American), color (black), and in reprisal for prior protected activity when: `
(1) on March 1, 2007, he was not selected for the position of Utility Systems Repairer Operator advertised under Vacancy Announcement No. ORF-06-108308-B; and
(2) on February 2, 2007, he received a "fully satisfactory" rating instead of an "exceptional" rating, which he had received in prior years.
In an amendment to the formal complaint, dated August 22, 2007, complainant requested that the instant complaint be amended to include the following claims that he was discriminated against on the bases of race, color and in reprisal for prior protected activity when:
(3) on March 5, 2007, he was not selected for the position of Maintenance Mechanic Leader advertised under Vacancy Announcement No. ORF-07-165178-MP; and
(4) on March 7, 2007, he was not selected for the additional position of Maintenance Mechanic Leader advertised under Vacancy Announcement No. ORF-07-158568-MP.1
On August 29, 2007, the agency granted complainant's request to have the instant formal complaint amended by including claims (3) - (4).
At the conclusion of investigation, complainant was provided with a copy of the report of the investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, complainant subsequently withdrew his request. Consequently, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its January 27, 2009 final decision, the agency found no discrimination. The agency determined that complainant did not establish a prima facie case of race, color and reprisal discrimination concerning claim (2) because he did not identify a similarly situated employee outside of his protected groups who was treated favorably under similar circumstances. The agency found, however, that complainant established a prima facie case of race and color discrimination concerning his non-selections because the selectees were outside of complainant's protected groups (claims (1), (3) and (4)). The agency further found that assuming, arguendo, complainant established a prima facie case of race, color and reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
Regarding claim (1), the record reflects that four candidates, including complainant, applied for the positions of Utility Systems Repairer Operator advertised under Vacancy Announcement No. ORF-06-108308-B. The record further reflects that three out of four candidates were selected for the subject positions. The selecting official (SO) stated that the subject position requires experience and knowledge of utility systems in facilities "in order to be able to proficiently perform maintenance, repair and troubleshooting of systems, i.e., Air Conditioning, control circuits, BAS (Building Automation Systems) high containment facilities, etc." SO further stated that the Utility Systems Repairer Operator must be able to work independently in responding to trouble calls for multiple utility systems. SO stated that after receiving the Certificate of Eligibles from Personnel, he forwarded the Certificate to the Recommending Official (RO) and former Assistant Chief (AC) of the Shop Section to review the candidates' application packages and made a recommendation to him. SO stated that after receiving a recommendation list from RO and AC, he chose three selectees for the subject positions based on their extensive work experience.
SO stated that he did not select complainant because of his limited work experience. Specifically, SO stated that while complainant is an Industrial Equipment Mechanic, WG-10 for 3 years, he has not shown or conveyed any experience as a USRO, with a BAS (Building Automated System), in High Containment facilities or in troubleshooting systems independently. SO further stated that a review of complainant's application "shows no experience performing the work of an HVAC mechanic, on control circuits or troubleshooting various types of utility equipment."
RO stated that she and complainant's former second-line supervisor (S2) reviewed the candidates' application packages and recommended three candidates to SO for consideration. RO stated that complainant "was the fourth candidate on the list but was not recommended because he was least qualified of the four candidates who applied for this vacancy in our opinion." Specifically, RO stated that the subject position "was primarily to perform critical building maintenance functions for bio-safety level three and four facilities. Each of the recommended candidates had more experience than [complainant]. [Complainant] had less experience in managing his own schedule, building operations which include Building Automation Systems (BAS)."
S2 stated that as a former Assistant Chief of the Shop Branch supervising approximately 150 employees, he provided RO input concerning "employee work habits; the types of duties they were responsible for; if they were in a leadership position, I provided information regarding the number of employees supervised, and their performance when they were the 'lead' person on various projects; I also discussed dependability, whether they were self-starters, whether they were decisive regarding the approach to projects, whether they completed tasks independently; ability to communicate and interact with others, etc."
Further, S2 stated that during complainant's tenure in the Shop Branch as an Industrial Equipment Mechanic, he performed "adequately." S2 stated that when complainant was assigned a task, he "would complete that specific task; if he needed assistance, he would ask; he was independent if he was familiar with the task; he was not a self-starter, he did not seek assignments; he does not do more than the required assignments or more than an assignment required. He worked well with peers who were responsible for other areas of maintenance such as painters, however, he did not work well with employees with the same skill sets that he possessed and there were occasional conflicts."
Regarding claim (2), S2 stated that "there are a total of five elements of evaluation and all of them are 'critical.' All but the first element addresses 'performance outcomes.'" S2 stated that the following five elements are: Administrative Requirements, Performance of Work, Technical Assistance and Problem Resolution, Communication and Safety. S2 stated that as of June 2006, there was a new appraisal system in which the achievable levels are as follows: Exceptional, Fully Successful, Minimally Successful and Unacceptable. S2 stated that the previous plan "was totally different and only had two levels: 'acceptable or unacceptable'." S2 stated that he rated complainant "fully successful" for the following four elements: Administrative Requirements, Technical Assistant and Problem Resolution, Communication and Safety but rated complainant as "successful" under the Performance of Work element. S2 stated that on February 2007, he gave complainant a rating of "fully satisfactory." S2 stated that complainant "could not have received an 'exceptional' rating because there was only the 'acceptable or unacceptable' levels as I have already explained in this document."
Further, S2 stated that complainant could have improved his "fully successful" rating "by being more proactive, i.e., when he completes an assignment in less than the required or allotted time, rather than socializing, he should seek additional work. Complainant needs to make more independent decisions regarding how to repair equipment and respond to emergencies because more often than not he will consult with co-workers before taking action. Complainant also needs to be more aggressive when learning new equipment."
Regarding claim (3), the record reflects that fifteen candidates, including complainant, applied for the position of Maintenance Mechanic Leader under Vacancy Announcement No. ORF-07-165178-MP. The record reflects that RO recommended eight out of fifteen candidates to SO for consideration. The record reflects that while seven out of fifteen candidates were selected for the subject positions, three selectees did not accept the job offer.
SO stated that one of the eight recommended candidates was already a WL-11 while complainant was a WG-10. SO stated that the second candidate was a "Pipefitter for twenty years, Installation Mechanic for three years described experience as Supervisor/leader, [Complainant] only a mechanic for six years and did not mention any supervisory experience in the maintenance field." SO stated that the third candidate was an USRO mechanic for ten years, worked at the WG-10 level for nine years, and had Shift Head Supervisor/leader experience while complainant "was a WG-10 (Mechanic) for only six years and did not describe any supervision in the maintenance field." SO stated that the fourth candidate was an USRO mechanic for six years and an Industrial Mechanic for 14 years while complainant was a WG-10 Mechanic for only six years.
Further, SO stated that the fifth candidate was an USRO Mechanic for five years and a Carpenter/Maintenance Mechanic/Locksmith for eight years and "leader experience in the maintenance field. [Complainant] was an Industrial Mechanic for four years and a Boiler Plant Operator for two years." SO stated that the sixth candidate was a Maintenance Mechanic for 16 years and worked as a leader while complainant was an Industrial Mechanic for four years and a Boiler Plant Operator for two years. SO stated that the seventh candidate was a Maintenance Mechanic for six years and a Paint Mechanic for ten years "with duties related to the maintenance field and leader, described Team Leader/Supervision responsibilities for several positions in the maintenance field. [Complainant] was an Industrial Mechanic for four years and a Boiler Plant Operator for two years and while he did mention experience as a Supervisor, it was in a field other than maintenance." SO stated that the eighth candidate was an USRO Mechanic for fifteen years and worked as a leader for two years, while complainant was an Industrial Mechanic for four years and a Boiler Plant Operator for two years. Moreover, SO stated that complainant's race, color and prior protected activity were not factors in his determination not to select him for the subject position.
With respect to complainant's assertion that [RO] received negative information from S2 concerning his prior protected activity and that her selection decision was influenced by this information, SO stated "I know of no such comments made by [S2] or anyone else concerning [Complainant's] prior EEO activity."
RO stated that she reviewed the candidates' application packages along with S2 and recommended the best candidates to SO for consideration. RO stated that she recommended eight candidates to SO for consideration based on their extensive work experience. With respect to complainant's argument that Maintenance Personnel receive preferential promotions over former Shop Section employees, RO stated "I want the best qualified candidate, regardless of where they acquired the relevant experience. I have selected some excellent candidates who were from the Shop Section simply because they were more qualified than the candidate pool."
Regarding claim (4), the record reflects that sixteen candidates, including complainant applied for the position of Maintenance Mechanic Leader, advertised under Vacancy Announcement No. ORF-07-158568-MP. SO stated that he took the following factors into consideration while making a selection for the subject position: the candidates' application packages and "how they expressed their experience, i.e. as a multi-trade mechanic, air conditioning experience, mechanical experience, leadership and most of all who has the confidence of the recommending officials." SO stated that he selected the selectee because he was a WL-11 for ten years and a WG-11 for nine years. SO stated that he did not select complainant for the subject position because he was not on the certificate list.
RO stated that she reviewed the candidates' application packages along with S2 and recommended only one candidate to SO for consideration. RO stated she provided SO "a brief overview of my rationale and answering any questions he may have pertaining to the candidates." RO stated that she recommended that the selectee be selected for the subject position because he was the best qualified candidate.
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).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
On appeal, complainant has not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination. Complainant addresses the reasons advanced by the agency for the various non-selections, asserting that they were a pretext for discrimination. Complainant also disputes the rating that is the subject of claim (2). Complainant further notes that the agency did not address two separate "complaints" he had filed regarding two additional non-selections. The Commission determines that the agency's finding of no discrimination was proper for the reasons set forth above. Moreover, the Commission determines that all non-selections that were raised in the subject complaint were addressed by the agency in its final decision.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the record evidence 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 3, 2009
__________________
Date
1 The record reflects that a separate report of investigation, identified by the captioned agency number, indicates that complainant also claimed that he was discriminated against on the bases of race, color, and reprisal when on October 23, 2007, he was placed in Absence Without Leave (AWOL) status while attending an appointment at the National Institutes of Health Employee Transition Center. In the report of investigation, the agency stated that complainant's AWOL claim "is an amendment to a previous complaint filed by complainant. The previous complaint is not part of this investigation." We note that complainant, on appeal, made no reference to this claim. As this claim was not the subject of the instant final decision and is not addressed on appeal, we will not further address it in this decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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