0120091858
06-17-2010
Patrick M. Cox, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Patrick M. Cox,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120091858
Agency No. HHS-OS-0512-2007
DECISION
On March 27, 2009, Complainant filed an appeal from the agency's February
27, 2009 final action concerning his 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 action.
BACKGROUND
At the time of the events giving rise to this appeal, Complainant
worked as a Labor and Employee Relations Specialist, GS-201-13, at the
agency's Labor and Employee Relations Division, located at the Rockville
Human Resource Center in Rockville, Maryland. Supplemental Report of
Investigation (Supp. ROI), at 2.
On December 12, 2007, Complainant filed an EEO complaint claiming that
he was discriminated against on the bases of race (White), sex (male),
and age (46). EEO Complaint. Complainant amended his complaint on
March 10, 2008, to include a claim of reprisal for prior protected
EEO activity under Title VII and the ADEA. Supp. ROI, Ex. C1, at 1.
Complainant claims the agency discriminated against him when:
1. On July 31, 2007, the agency did not select Complainant for a promotion
to the position of Lead Human Resources Specialist, GS-0201-14; and
2. On February 8, 2008, the agency evaluated Complainant as "fully
successful" when he had been evaluated as "exceptional" the previous
and subsequent years. 1
Final Agency Determination (FAD), at 3-4.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
Complainant's request, the agency issued its final action pursuant to
29 C.F.R. � 1614.110(b). The agency determined that Complainant failed
to prove that he was subjected to discrimination as alleged.
With regard to claim (1), Complainant claimed that the agency passed over
him for promotion in favor of three applicants who possessed inferior
skill, training, expertise and experience. ROI, at 5. The three
applicants selected for the GS-14 positions all were White females. Id.
All of the selectees were younger than Complainant. Id.
The agency officials involved in the interview and selection process
presented a different interpretation of these events. The Division
Director (Director) stated that Complainant gave an inferior interview and
received the second lowest interview score out of the five interviewed
applicants. Id., at 6. The Director further stated that the three
selectees attained the three highest scores during the interview and
denied that any discrimination on the bases of sex, race, or age occurred
at any point during the application, interview or hiring process. Id.
The Deputy Director of the Division (Deputy) confirmed the Director's
statements. She noted that the Director set requirements each applicant
would need to meet before he or she would be offered the GS-14 position,
including the "ability to lead, ability to mentor, the ability to be
a team player, and technical knowledge." Id., at 7. Regarding the
questions asked during the interview, the Deputy stated that she drafted
the questions and the Director reviewed them. Id. The Deputy provided
the names of the three applicants with the highest interview scores to the
Director, and the Director approved the hiring of those individuals. Id.
A Management Analysis Officer, GS-342-15, (Interviewer) employed by
the Office of Management also participated in the interview process.
The Interviewer stated that she was not impressed by Complainant's answers
to the interview questions, that she found Complainant's answers to be
limited and that he did not demonstrate a necessary level of experience
for the position. Id. The Interviewer further indicated that she
believed that the interview committee did not discriminate against
Complainant on the basis of sex, age or race. Id., at 8.
In response, Complainant claimed that the interview questions were drafted
to favor the selectees. Id. Complainant also asserted that the questions
were drafted to avoid penalizing one of the selectees for her lack of
supervisory and managerial experience. Id. Complainant claimed that
the questions were experience neutral and had little to do with the past
accomplishments or supervisory experience of the interviewees. Id., at
5. Regarding the interview questions, two began with the phrase "consider
the following scenario," followed by a hypothetical situation to which
the interviewee was to respond. Supp. ROI, at Ex. F12. The remainder of
the questions sought responses concerning the interviewees' conceptions
of leadership, supervisory experience, personal strengths and weaknesses,
and views on intra-office conflict resolution. Id.
Of the five finalists for the positions, Complainant received a score of
100% for his application and 62.5% for his interview. Id., at Ex. F15.
The three selectees had application scores of 99.23%, 95.37% and 94.62%
and interview scores of 89.6%, 89% and 70.8%, respectively. Id.
Regarding Complainant's claim that his diminished performance review
constitutes reprisal for his prior EEO complaint, Complainant claimed
that his Performance Management Appraisal Program (PMAP) evaluation
administered after his EEO complaint was significantly lower than in
the previous year. In support of this claim, Complainant noted that he
received a PMAP score of 4.6/5 in 2006, a PMAP score of 3.0/5 in 2007,
Supp. ROI, at 2-3, and a PMAP score of 4.3/5 in 2008, though Complainant
was working for a different organization in 2008 and the PMAP for
that year was administered by that agency. Complainant's Statement
on Appeal.
Complainant disputed his PMAP score in five areas - administrative
requirements, strategic management of human capital, employee relations
technical competency, customer service, and teamwork - claiming that
he should have received a ranking of "exceptional" in each of these
areas. Supp. ROI, Ex. 2, at 2-3. Had he been evaluated as he thought
appropriate, Complainant's PMAP score for 2007 would have been 4.67.
The Director and the Deputy attributed Complainant's diminished 2007
PMAP score to different factors. The Director stated that he received no
feedback from any of Complainant's clients suggesting that Complainant's
work had been exceptional. Supp. ROI, Ex. F5, at 1. Further, the
Director did not find Complainant's job performance or work product to
be exceptional. Id. Finally, the Director also noted that Complainant
was resistant to change and displayed a negative attitude that influenced
younger employees. Id.
The Director also indicated his dissatisfaction with several elements of
Complainant's job performance, including an inability or unwillingness to
adapt to a modified division organizational structure and an inability
or unwillingness to avoid dispensing personal opinions in the course of
Complainant's job functions. Supp. ROI, at 5.
The Deputy indicated that the agency's organizational restructuring,
commenced on April 1, 2007, resulted in a shift in expectations of
agency employees, with generally higher standards set for employees
and a greater focus placed on teamwork, technical competency, customer
service and labor relations. Supp ROI, Ex. F4, at 1. From the Deputy's
perspective, Complainant did not so exceed these expectations so as
to warrant "exceptional" rankings in the five competencies about which
Complainant disputes his rankings. Supp. ROI, at 4-5. Moreover, the
Deputy requested that agency employees, including Complainant, document
all work performed by the employees that they thought was exceptional
and to provide that information to the Deputy. The Deputy also
requested that employees, including Complainant, forward her instances
in which clients provided praise or positive feedback to the employees.
Supp. ROI, at 4. Complainant did not comply with these requests, id.,
and he in turn disputed the characterization of his performance as merely
"fully satisfactory." Id., at 2-3.
Finally, as a result of the April 1, 2007 organizational restructuring,
2007 represented the first year in which the Deputy evaluated Complainant.
In years prior to 2007, a former supervisor performed Complainant's PMAP.
Complainant's Statement on Appeal.
In response, Complainant produced an email in which the Deputy praises
his performance with respect to one of his projects and indicates that
the client was pleased with Complainant's work. Id.
ANALYSIS AND FINDINGS
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
Claim 1
As a threshold matter, we dispense with Complainant's race discrimination
claim with respect to claim (1). To establish a prima facie case,
Complainant must set forth sufficient evidence to support an inference
of discrimination. Furnco, 438 U.S. at 578. Complainant asserted that
the agency discriminated against him because of his race when it refused
to hire him for the GS-14 position.2 Complainant is White. The three
individuals selected for the GS-14 position are White. Complainant has
failed to present a prima facie case of discrimination based on race
given that all of the selectees were within his protected group.
We shall assume, arguendo, that Complainant has set forth a prima facie
case of age discrimination under the ADEA. The agency presented several
legitimate, nondiscriminatory reasons for its actions. The Deputy and the
Director selected the three successful candidates based on their interview
scores. ROI, Ex. F5. Complainant scored lower in the interview than the
three selectees. Indeed, Complainant's interview score was significantly
lower than the individual hired who had the lowest interview score of the
successful applicants (62.5% and 70.8%, respectively). ROI, at Ex. F15.
While Complainant did outperform this individual in the application
portion of the selection process by approximately the same margin
(5.38%) as she outperformed him in the interview (8.3%), the balance
of the scores is sufficiently close that we conclude the employer was
acting within its discretion to make an employment decision between two
equally qualified candidates. We find that the agency has articulated
a legitimate, nondiscriminatory explanation for its employment decisions
with respect to the GS-14 position.
To prove pretext in the context of his ADEA claim, Complainant must
prove that his age was a determinative factor in not receiving the GS-14
position, and that the agency's articulated legitimate, nondiscriminatory
reason for not hiring him is simply untrue. See, e.g., Reeves, 530
U.S. at 141. Complainant attempted to establish pretext by arguing
that the interview questions were written in such a way as to favor the
younger applicants. Complainant's Statement on Appeal. Complainant
also asserted that both he and the other applicant not selected had
"considerably more experience within Human Resources and had decades of
work within the federal Human Resources system." Id.
We find that these contentions do not establish pretext. With regard
to the interview questions, the questions and model answers were written
nearly one month prior to the interview. It seems highly improbable, as
Complainant asserted, that that the question drafters knew, in advance,
what answers the three successful applicants would give (which would
be required for the question drafters to phrase the questions to elicit
optimal responses from the three female interviewees).
Complainant further claimed that the questions were drafted to minimize
the importance of supervisory and leadership experience, an area he
claims to have had an advantage over the three selectees. ROI, at 5.
At least five of the sixteen questions reference supervisory work.
Supp. ROI, Ex. F12. At least five of the sixteen model answers reference
supervisory experience, past supervisory work, and the requirements to
be a successful supervisor. Id.
Moreover, even assuming, arguendo, that Complainant had more supervisory
experience than the other applicants, the Interviewer felt that
Complainant's performance in the interview was inferior to that of the
three selectees. In considering the limited nature of Complainant's
answers, the Interviewer stated that Complainant's answers indicated a
lack of "extensive experience in labor and employee relations" and in
"leading or managing a staff performing labor and employee relations
work." ROI, at 7. These considerations appear to be reflected in
Complainant's lower interview score. The Commission finds that the agency
had a legitimate, nondiscriminatory reason not to select Complainant
for the GS-14 position, and that it lawfully exercised its prerogative
in selecting for hire those candidates who achieved the highest scores
as a result of its competitive hiring process.
Complainant has not offered material evidence that the selection process
evidenced a bias against him because of his age. We find that Complainant
has failed to establish that the agency's legitimate, nondiscriminatory
reasons for not hiring him were pretext intended to mask discriminatory
motivation based on race.
Similarly, with regards to Complainant's claim of sex discrimination,
we find that, while Complainant established a prima facie case that the
agency discriminated against him on the basis of sex, Complainant has
failed to prove that the agency's legitimate nondiscriminatory reasons
for not hiring him were pretext. We find that complainant failed to
meet his burden to show that the incident in claim (1) was motivated by
any bases of discrimination.
Claim 2
With regard to claim (2), Complainant can establish a prima
facie case of reprisal discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a Complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Here, Complainant satisfies the first three elements of the requirements
for a prima facie case of reprisal. Complainant filed an EEO claim
asserting discrimination on the bases of sex, race, and age. The agency
was aware that Complainant had filed an EEO claim, as Complainant sought
EEO counseling, then filed a complaint against the agency December 24,
2007. In his amended complaint, Complainant claimed that the Deputy, with
the approval of the Director, rated Complainant as "fully satisfactory"
on his annual FMAP, when in the past year Complainant received an
"exceptional" ranking. Supp. ROI, at 2.
Even assuming, arguendo, that Complaint can prove that a nexus between
his prior EEO activity and his 2007 FMAP evaluation exists, the agency
has articulated several legitimate, nondiscriminatory reasons for its
actions that withstand a claim of pretext. See Whitmire, EEOC Appeal
No. 01A00340. While Complainant asserts that his job performance merited
an "exceptional" FMAP evaluation, the Director and the Deputy provided an
explanation for the "fully satisfactory" evaluation, including general
and documented dissatisfaction with many elements of Complainant's job
performance and sworn statements that Complainant's work was simply not
exceptional. 3
Moreover, Complainant's reprisal claim also encounters causation problems.
Complainant received an "exceptional" evaluation for 2006 and a "fully
satisfactory" evaluation in 2007. In the interim, however, the agency
underwent an organizational restructuring, Complainant began reporting
to a new supervisor and the expectations of the position Complainant
occupied at that time changed. These intervening variables vitiate
Complainant's efforts to establish that a "nexus exists between the
protected activity" and Complainant's diminished 2007 FMAP evaluation.
Whitmire, EEOC Appeal No. 01A00340.
As the agency has proffered legitimate, nondiscriminatory reasons for
awarding Complainant an FMAP evaluation of "fully satisfactory," and
there is no material evidence to suggest that these reasons were pretext,
the Commission finds that the agency did not commit reprisal against
Complainant. There is no indication that the evaluation in claim (2)
was motivated by any bases of discrimination.
CONCLUSION
The agency's determination in its final action that no discrimination
on any bases occurred is AFFIRMED.
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
June 17, 2010
__________________
Date
1 On appeal, Complainant relinquished two of his claims of discrimination,
that his supervisors imposed and enforced a sex-discriminatory dress
code and that his supervisors, on the bases of Complainant's sex, race,
and age assigned him more work than his colleagues.
2 Complainant references a measure of social animosity between himself
and the Director, who is Black. ROI, at Ex. 2.
3 Complainant claims that the administrative character of the evaluation
process as a whole was sufficiently irregular that it supports his claim
of reprisal, in that his three months as a temporary GS-14 were not
factored into his 2007 evaluation. Supp. ROI, at 2. This assertion
does not further Complainant's reprisal claim because, to the extent
that Complainant was disadvantaged by the claimed administrative and
procedural irregularities, all evaluated employees, including those who
received "exceptional" evaluations, were subjected to the same system.
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0120091858
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091858