0120122050
09-07-2012
Michael P. Valoski, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Michael P. Valoski,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120122050
Agency No. CRC 11-03-080
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 6, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Supervisory Industrial Hygienist at the Agency's Mine Safety and Health Administration in Pittsburgh, Pennsylvania.
On May 9, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of age (over 40) when:
on February 24, 2011, he learned that he was not selected for the position of Supervisory Physical Scientist, GS-1301-14.
After the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on March 6, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its March 6, 2012 final decision, the Agency found no discrimination. The Agency found that Complainant established a prima facie case of age discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext for discrimination. Specifically, the Agency found that while Complainant and the selectee had the same amount of supervisory experience, the selectee had extensive experience performing the job duties that he would be supervising for the position of Supervisory Physical Scientist, whereas Complainant did not.
The selecting official (SO) stated that four candidates, including Complainant, made the Certificate of Eligibles for the subject position. SO stated that he reviewed all of the four candidates' application packages in the Agency's DOORS system and worked on a list of interview questions. SO stated that following the interviews, he could not remember "if I indicated a ranking in the selection documentation in DOORS, but overall, I made a decision that my choice of candidates in order of preference were: [Selectee] first, [named female candidate] second. [Complainant] third, and [named male candidate] fourth." SO stated that the subject position supervises the laboratory and "the primary focus of the laboratory is processing Dust Division samples."
SO stated that he chose the selectee for the subject position because he "had eight years supervisory experience in the largest volume laboratory at the Pittsburgh Safety and Health Technology Center Laboratory (the Weighing Lab) and several years hands-on experience as an analyst in the second largest lab (the Quartz lab), in addition to limited experience in another lab. Together the Weighing Lab and Quartz labs account for approximately 120,000 samples processed per year, greater than 90% of the workload of the American Industrial Hygiene Association accredited PSHTC Lab. For laboratory accreditation purposes, the selected candidate serves as the Laboratory Technical Director. He was extremely familiar with our LIMS laboratory database and had demonstrated both Visual Basic programming skills that were a key to the productivity in the Weighing Lab and mechanical troubleshooting skills with the robotic weighing systems and other laboratory accessories, thus helping reduce instrument maintenance costs. These value added skills worked in his favor."
SO acknowledged that during the interviews, both the selectee and Complainant "performed satisfactorily; the complainant was somewhat more effective in his presentation, partly due to the fact that the selectee was suffering from a cold and was under the weather. The complainant did better in his responses about training (having conducted inspector training sessions at the mine academy) and demonstrated communication skills, breadth of knowledge about sampling, volunteer projects, and stakeholder contacts. The selectee had an edge in value added skill (instrument maintenance and VB programming), knowledge of the coal health regulations and laboratory QA program, improvements in laboratory operations, and laboratory experience relevant to the scope of operations of the AIHA-accredited Pittsburgh Safety and Health Technology Center Laboratory, compiling and analyzing laboratory data, and computer literacy skills. Both had extensive experience providing technical support to the Agency, had essentially the same supervisory experience, and experience dealing with controversial issues and equipping and maintaining laboratory operations, and in conducting laboratory investigations."
Further, SO stated that he did not select Complainant because he was not best qualified. Specifically, SO stated "Complainant's involvement in the industrial hygiene labs was small compared to the number of samples processed in the other laboratories. Also, the Complainant's branch frequently was the last to meet their timeliness for submission of required Quality Assurance documentation. The Complainant had limited experience in supervising a high capacity accredited lab. He had more experience in collecting samples instead of analyzing the samples in the lab. He supervised people on mine emergencies, but he did not have [experience] in keeping [the] lab and laboratory equipment running."
With respect to Complainant's allegation that SO told him he based his selection decision "looking 4 or 5 years into the future," SO acknowledged making the statement. Specifically, SO stated "I did say something about 'over the next five years" when talking to the Complainant about his non-selection for the position. I was talking about our long range plan for the laboratory, our computer systems and the data handling which will become obsolete in the next five years. [Selectee] had programming [experience] and understands what needs to be done. [Selectee] is a back up administrator for our laboratory database to manage our sample records. The Complainant's division has been reluctant to use the database." SO further stated that his comment "was not to reference the Complainant's age or any future retirement plans he may have within the next several years."
With respect to Complainant's allegation that SO told the Program Analyst (PA) that he sought an applicant who would be around for a while, SO denied it. Specifically, SO stated "I have no recollection of making such a statement nor of discussing my selection criteria or rationale with [PA] at all. [PA] was a witness to the interviews but was not asked for input into my decision. I do remember her opining at the end of the interview process that two candidates did well and two did 'so-so,' or something to that effect."
The Center Chief stated that he was the concurring official (CO) concerning the subject position. CO stated that when he met with SO concerning the selection for the subject position, SO told him that the selectee and Complainant "had the same amount of supervisory experience but [Selectee] also had numerous years of experience doing the jobs that he would be supervising and [Complainant] did not. Along with a general knowledge of all lab functions at the PS&TC and the accrediting procedures for those functions, [selectee] had hands-on experience in the branch of the lab he would be supervising which performs such functions as Fourier Transform Infrared Spectroscopy (FTIR) to analyze respirable coal mine dust samples for quartz; X-ray Diffraction to analyze respirable dust in metal/nonmetal mines; diesel particulate matter analysis; fiber and asbestos analysis and toxic metal dusts and fumes analysis." Furthermore, CO stated that the selectee's age was not a factor in his concurrence to select him for the subject position.
PA stated that she sat in on the interviews as a Labor Management Relations representative and at CO's request. Specifically, PA stated "I act as a non-verbal participant [in] many interviews that are conducted in the Center to ensure that rules are followed during the interview process." P1 stated that during his interview, Complainant did well and answered SO's questions "with no hesitation. He was in-depth and didn't need to think much after hearing a question. [SO] would ask a question and bang, he would give an answer. I am not a lab person and I don't have deep technical knowledge regarding these areas, but based upon all the interviewees' response, I thought [Complainant] did very well in his interview."
Further, PA stated that following the interviews she spoke with SO and "expressed my opinion how I perceived the individuals had done during their interviews or the individuals that I felt had done a good job. He was interested in someone who would be around for awhile."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no discrimination. For instance, Complainant states that he was led to believe that the information gathered by the EEO investigator "was to be used by the deciding official. Instead of using her information, the deciding official collected additional information without [Complainant's] knowledge or input." Complainant argues that had he known about the additional information, he would have "made a different decision during the mediation. [Complainant] based his decision on the information collected by the [EEO investigator]."
Furthermore, Complainant further argues that as an unbiased observer, PA's affidavits "should be given greater weight than the deciding official did."
ANALYSIS AND FINDINGS
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, as addressed above. We further determine 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 (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
September 7, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122050
7
0120122050