0120083457
02-25-2009
Pedro Martinez, Complainant, v. Tom Vilsack, Secretary, Department of Agriculture, Agency.
Pedro Martinez,
Complainant,
v.
Tom Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120083457
Agency No. NRCS-2006-01851
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 1, 2008 final decision 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.
During the period at issue, complainant was employed as a Management
Analyst, GS-034-14, at the agency's Strategic Planning & Accountability
Deputy Area, Natural Resources Conservation Services in Washington D.C.
On May 25, 2006, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of race (50% Aztec Indian and 50% Spaniard), national origin
(Mexican American), sex (male), color (Brown), and in reprisal for prior
EEO activity when:
1. on January 9, 2006, he was not selected for the position of Natural
Resource Manager, GS-401-14/15, advertised under Vacancy Announcement
Number NRCS-06-TH-052A; and
2. on March 20, 2006, he was not selected for the position of Natural
Resource Manager, GS-401-14/15, advertised under Vacancy Announcement
Number NRCS-06-TH-103A.
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 a final decision on July 1,
2008, pursuant to 29 C.F.R. � 1614.110(b).
In its July 1, 2008 final decision, the agency found no discrimination.
The agency found that complainant failed to establish a prima facie
case of reprisal discrimination concerning his two non-selections.
The agency further found that complainant established a prima facie
case of race, national origin, sex, and color discrimination because the
selectees were outside of complainant's protected classes. However, the
agency found that management articulated legitimate, nondiscriminatory
reasons for its actions which complainant did not show were a pretext
for discrimination.
Regarding claim 1, complainant's second-level supervisor (S2),
was the selecting official, for the position of Natural Resource
Manager, GS-401-14/15, advertised under Vacancy Announcement Number
NRCS-06-TH-052A. S2 stated that after he received the Certification
of Eligible Candidates, he reviewed all four candidates' application
packages. Specifically, S2 stated "I evaluated each applicant based
upon criteria I established in a ranking sheet. Upon completion of
the evaluation the individual I selected stood out from the remaining
applicants as the best qualified for the position." S2 stated that
at that point, he chose not to set up a selection panel "to conduct
interviews based upon my initial evaluation." S2 stated that he was
looking for someone with "experience, knowledge and demonstrated ability
to manage an effective organization at different levels of the agency
is critical to the ability of this position to effectively lead the
Operations Management Team." S2 stated that the selectee "demonstrated
successful leadership of a state level organizational team similar in
function and focus as the OMOD Operations Management Team." S2 stated
that the other three unsuccessful candidates, including complainant,
did not have the demonstrated experience that the selectee had.
The Deputy Chief (DC), Strategic Planning and Accountability stated that
she was the concurring official for the position of Natural Resource
Manager, GS-401-14/15, advertised under Vacancy Announcement Number
NRCS-06-TH-052A. DC stated that she concurred with S2's determination to
select the selectee for the subject position because he "has an excellent
knowledge of programs and operations management functions and activities
at the State level. He is proactive, interacts well with the leadership,
and does not shy away from controversy."
Regarding claim 2, S2 stated that he was also the selecting official for
the position of Natural Resource Manager, GS-401-14/14, advertised under
Vacancy Announcement Number NRCS-06-TH-103A. S2 stated that he reviewed
the application packages of three candidates, including complainant;
and evaluated each candidate "based upon criteria I established in a
ranking sheet." S2 stated that upon completion of the evaluation, he
determined that each candidate "had strengths but none rose above the
others; I asked a diverse panel, which included a team leader from the
Operations Management and Oversight Division, a Division Director from
my Deputy area who had previously served in the advertised position,
and a Division Director from another Deputy Chief area to interview and
provide me a recommendation as to the best candidate for the position."
S2 stated that he conducted interviews with the candidates personally
following their interview with the panel. S2 stated that upon the panel's
recommendation, he chose the selectee for the subject position because
she was best qualified. S2 stated "the responses by the complainant to
my interview questions [were] brief and to the point. He answered each
question as briefly as he possibly could. The questions were designed
to solicit thoughts, ideas and other responses that may not have been
covered by the vacancy announcement and specific to the position."
Furthermore, S2 stated that complainant's race, national origin, sex,
color and prior protected activity were not factors in his determination
to select selectee for the subject position.
DC stated that she concurred with S2's determination to select the
selectee for the subject position. Specifically, DC stated that S2
"in addition to conducting his own analysis, requested that a diverse
three-person panel interview the candidates. The panel recommended
another applicant, who they felt responded better to questions in the
interview situation. Given the nature of the position, which requires
a great deal of follow up and negotiation both with external oversight
organizations and internal employees, especially at the leadership level,
I concurred with the recommendation of [S2] and the panel." DC stated
that the selectee "is a self-starter and follows through on assignments
with minimal guidance. She interacts well with leadership, keeps them
informed, and is adept at resolving and handling difficult subjects and
situations with external oversight agencies and employees."
One of the three panelists (P1) stated that the panel asked each candidate
questions from a standard list of questions. P1 stated the following the
interviews, the panel discussed the candidates' responses and "reached
consensus about the ranking based on their responses." P1 stated that
the selectee "responded best in the interview. The selectee described
leadership role on projects, from vision to implementation and follow
up and took responsibility for results." P1 stated that complainant
answered the questions "sufficiently and gave a thorough overview
of his experience. We (interview panel) had to prod [complainant] to
elaborate on some of his assignments, particularly on results or outcomes.
[Complainant] did not own his contribution as a leader for projects
but acknowledged that he was a team member." Furthermore, P1 stated
that she did not discriminate against complainant based on his race,
national origin, sex, color and prior protected activity.
A claim of disparate treatment is examined under the three-part 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 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. 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 which complainant did not
prove were a pretext for discrimination, and that complainant has not
demonstrated that these reasons were a pretext for discrimination.
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 (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
February 25, 2009
__________________
Date
2
0120083457
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083457
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