0120142783
09-22-2016
Minna Z.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Minna Z.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120142783
Hearing No. 560201300199X
Agency No. ARMCAAP10AUG03765
DECISION
On July 31, 2014, Complainant appealed the Agency's July 8, 2014 Final Order 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 Management Assistant (GS-07) at the Agency's McAlester Army Ammunition Plant ("MCAAP") in McAlester, Oklahoma.
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), age (67), and reprisal for prior EEO activity when, in July 2010 she learned she had not been selected for the position of Management Analyst (GS-09).
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 Equal Employment Opportunity Commission Administrative Judge ("AJ"). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on June 25, 2014.
In reaching her decision, the AJ found that the record developed during the investigation established the following undisputed facts.
Complainant first applied for the Management Analyst position in 2000, but it was awarded to her coworker ("M1") (female, white, age undisclosed). Complainant stated in the record that she worked closely with M1, gained a thorough knowledge of records management specific to MCAAP, and often performed Management Analyst duties. When M1 retired in 2010, Complainant believed she was "next in line" for the position of Management Analyst.
In April 2010, the Agency issued a Vacancy Announcement for the Management Analyst (GS-09) position. Complainant applied and was among thirteen candidates placed on the referral list. Complainant was the only candidate on the list who identified as African American/Black. Of the remaining candidates, 7 were white, 3 were multi-ethnic/racial, and one was undisclosed. Complainant's second level supervisor (female, white, unspecified age) ("S2") reviewed the candidates' applications and submitted her first choice candidate ("C1") (female, white, 32), as well as a second choice ("C2") (female, race and age not disclosed) to Complainant's first level supervisor (male, white, 48) ("S1"). S1 agreed that C1 was the most qualified candidate given her "higher level qualifications." C1 accepted the Management Analyst position in July 2010. M1 was hired on a part time basis to train C1, ensuring a "smooth transition."
In making their selection, S1 and S2 relied on the Management Analyst position description, which contained a number of detailed "factors" providing objective qualifying criteria. It is undisputed that both C1 and Complainant met these criteria, such as specialized knowledge of record-keeping procedures and administrative organization (factor 1). Additionally, C1 and Complainant both held bachelor's degrees, and were Management Assistants at MCAAP. Although C1 had only worked as a Management Assistant for 2 years compared to Complainant's 10, both S1 and S2 noted that C1 already had coordinator and management experience at MCAAP because she also functioned as the Program Manager for the MCAAP Army Suggestion Program. C1 had also gained the necessary recordkeeping knowledge in other positions, which also provided experience with "upper level" records and leadership.
S2 selected C1 because she believed that C1's "past supervisory experience should enhance her ability to perform lead functions as a records manager." Specifically, the Management Analyst position required high level interaction with directors and representatives of various programs, service organizations, and at headquarters, including coordinating, advising, resolving operating problems, and motivating individuals while working toward mutual goals (factors 6 and 7); as well as an ability to make decisions without supervisory input (factor 2). Likewise, S1 cited C1's "detailed experience as an Assistant Postal Supervisor in Iraq, [and] as Official Mail Manager for a US Army reserve center" along with ongoing supervisory experience during her time in the Army among his reasons for selecting her as his first choice for the position.
Complainant disputes S1 and S2's explanations, instad alleging that S1, S2 and M1 preselected C1 before the vacancy was announced. While S1 and S2 consulted M1 as a reference concerning C1 and C2, M1 did not discuss Complainant during these communications. Additionally, M1 was retired at the time of the selection.
The AJ found that Complainant failed to establish a prima facie case for age and racial discrimination under the ADEA and Title VII because she did not provide evidence that her non-selection for the Management Analyst position was based on discriminatory intent.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, a hearing is required. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without a hearing only upon a determination that the record has been adequately developed for such disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Since the instant complaint alleges nonselection based on disparate treatment, Complainant has the burden to demonstrate by a preponderance of the evidence that the agency's non-selection was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Texas Dep't of Cmty. Affairs v. Burdine; St. Mary's Honor Ctr., supra. In nonselection cases, pretext may be found where the complainant's qualifications are demonstrably superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, an employer has the discretion to choose among equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Additionally, an employer has greater discretion when filling management level or specialized positions. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
Here, the AJ determined that S1 and S2's legitimate nondiscriminatory reason for selecting C1 instead of Complainant for the position of Management Analyst was that C1 had superior leadership experience. The record thoroughly supports the AJ's finding that although Complainant was "very clearly equally as qualified" as C1 for the position at issue, she lacked comparable leadership experience. The AJ emphasized that Complainant did not dispute or controvert C1's qualifications in the record, and noted that Complainant had been provided with sufficient opportunity to show that her qualifications were "demonstrably superior" to those of C1 but failed to do so. Moreover, the AJ cited Complainant's own testimony in the record contradicting Complainant's allegations that S1, S2 and M1 acted with a discriminatory motive when they selected C1. The record also supports the AJ's finding that S1 and S2 acted within their discretion when they selected C1 based on her leadership experience. Specifically, the AJ rejected Complainant's argument that S1 and S2's reason was pretext because "leadership experience" was not specified as a requirement in the Management Analyst position description based on the detailed requirements of the Management Analyst position provided in the record. The AJ explained that S1 and S2 acted within their discretion when they prioritized leadership experience. Documentation in the record provided that the position included responsibilities such as administering the "records management program" that require leadership skills even though "leadership experience" was not expressly listed as a required qualification.
Our review of the record and both parties' submissions on appeal is consistent with that of the AJ; the record is sufficiently developed so that there is no issue of material fact requiring a hearing. We recognize that Complainant's tenure with the Agency likely provided her with a uniquely specialized knowledge of the Agency's records systems, and that her decade of experience working alongside M1 could reasonably mean - as Complainant alleges on appeal - that M1 would not have to "come out of retirement" to help train her, as she did for C1. However as the AJ explained, tenure is not considered as a guarantee for promotion in federal employment. Given S1 and S2's emphasis on leadership experience as the deciding factor in their selection of C1, Complainant's focus on her Agency-specific experience fails to raise a question of material fact as to whether her qualifications are "demonstrably superior to that of the selectee." Comploainant's argument on appeal also fails to contradict the AJ's determination that based on the record, C1's leadership experience was an additional qualification that "pushed her over the top" among equally qualified candidates including Complainant. We remind Complainant that we cannot consider additional evidence or assertions regarding her qualifications that were not provided to the selecting officials (S1 and S2) at the time of selection. As the AJ aptly cited, "[i]t is the perception of the selecting official's perception of her skills at the time the decision is made that is critical." Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980). We decline to address Complainant's other arguments on appeal as we find the record is sufficiently developed for the AJ to render a decision.
Also on appeal, Complainant attempts to raise new claims of reprisal. Specifically, Complainant alleges that as a result of filing the instant EEO complaint, she has received poor performance evaluations and been threatened with early retirement if she continues to pursue her EEO complaint. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) Additionally, agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. �1614.101; Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) However, Complainant's reprisal claim is not at issue in the complaint before us, so it will not be adjudicated in this decision. If she has not done so already, Complainant may raise his new claim of reprisal in a separate complaint by contacting an EEO Counselor pursuant to 29 C.F.R. � 1614.105.
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 Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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.
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2016
__________________
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.
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