0120081951
09-17-2009
Robert F. Howley, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Robert F. Howley,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120081951
Agency No. MINT-07-0547-F
DECISION
On March 20, 2008, complainant filed an appeal from the agency's February
15, 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely1 and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUES PRESENTED
Complainant alleges that he was discriminated against based on his race
(Caucasian), age (55), and/or reprisal (prior EEO activity) when:
1. In January 2007, he was not selected for a temporary 120-day
assignment as Supervisory Quality Assurance Specialist, GS-12;
2. In April 2007, he was not selected for a 120-day detail to the
position of Supervisory Quality Assurance Specialist, GS-13; and
3. On July 10, 2007, he was denied consideration for Vacancy
Announcement Number 07-USMINT-186, due to the time in grade requirement.2
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Quality Assurance Specialist, GS-9 with the Department of the Treasury,
Quality and Technical Support Division (QTSD), the United States Mint,
Denver, Colorado. The record reveals that complainant expressed his
interest in the non-competitive Supervisory Quality Assurance Specialist
position.3 The position was not awarded to complainant and the selectee
was not of complainant's protected bases (Black, age 42, no prior EEO
activity). The position was announced again and it was awarded to the
same selectee. Complainant maintains that the second 120-day detail was
in strict violation of the 6th National Agreement, in that it should have
been competitively announced. He also maintains that Article 16 prohibits
an individual from serving in back-to-back 120-day details.
Complainant asserts that he should have been selected for one of the
acting positions because he has extensive experience, certifications,
education, time in the Division, and the absence of any EEO complaints
or union grievances filed against him. He also maintains that his
military experience provided him with real supervisory experience,
as opposed to the selectee. Moreover, he contends that he had several
certifications, while the selectee only had one. With respect to issue
3, complainant states that for one of the two announced positions,
his "equivalent experience" should have been considered but was not.
On May 7, 2007, complainant filed an EEO complaint alleging that he was
discriminated against based on his race, age, and prior EEO activity.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
either a hearing before an EEOC Administrative Judge (AJ) or a final
agency decision (FAD). In accordance with complainant's request, the
agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that he was
subjected to discrimination as alleged.
Specifically, the agency explained that with respect to issues 1 and 2,
the selectee was chosen for both details because it was believed that the
selectee was the most qualified and most experienced person available.
The Selecting Official stated that the selectee was one of the senior
Quality Assurance Branch Professionals and was the sole supervisory
Branch Member who had extensive supervisory experience and the requisite
technical experience to successfully fill a short-term critical need.
The agency indicated that it considered complainant for the temporary
positions but noted that complainant did not have experience at the
next-lower grade level. With respect to issue 3, the agency stated
that complainant was not considered for the position because he did
not have the required time-in-grade. The agency maintained that to be
considered for a GS-12 position, the candidate had to have completed
a minimum of 52 weeks in a position or positions equivalent to, or no
more than one grade lower than, the position to be filled. "Equivalent"
was described as referring to a position in a pay banding system such
as the one used by the Postal Service. The Human Resources person also
stated that military experience did not count for time-in-grade purposes.
CONTENTIONS ON APPEAL
On appeal, complainant contends that there were many irregularities in
the selection process involving these positions. He argues that his
"equivalent" experience should have been considered. Complainant also
asserts that once he had established a prima facie case of discrimination,
the agency had the burden of proving its case.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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).
He must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Further, under the ADEA, it is "unlawful for an employer . . . to fail or
refuse to hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's
age." 29 U.S.C. � 623(a)(1). When a complainant alleges that he or she has
been disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
Additionally, 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 Corp. v. Green, 411 U.S. 792, 802 (1973)). 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).
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that, even if
we assume arguendo that complainant established a prima facie case of
discrimination as to all bases, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the record shows
that complainant was not selected for one of the 120 day details because
he did not have the time-in-grade, and was not the best qualified for
positions number 1 and 2. He was not selected for the position in issue
number 3 because he did not have the time-in-grade for the position.
Because the agency articulated legitimate, nondiscriminatory reasons
for its action, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reasons are a pretext
for discrimination. In nonselection cases, pretext may be found where
the complainant's qualifications are demonstrably superior to the
selectee's. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981).
In this case, we find that complainant has not adduced evidence to
show that his qualifications are demonstrably superior to those of
the selectee. Further, we find that complainant's argument that the
selection of the selectee for two consecutive 120-day details was in
violation of the union agreement is irrelevant as to whether unlawful
discrimination or reprisal occurred. We find the evidence does not
support complainant's contention that he was discriminated against based
on his race, age, or prior EEO activity.
Complainant also argues that the selectee was being groomed for
advancement and was preselected for the positions. While we are not
convinced that preselection occurred, we note that we have held that
preselection, per se, does not establish discrimination under Title VII
when it is based on qualifications of the selected individual and not
some basis prohibited by Title VII. McAllister v. United States Postal
Service, EEOC Request No. 05931038 (July 28, 1994). Because we find that
complainant has failed to offer probative evidence demonstrating that
the agency's selection decisions were based on prohibited bases under
Title VII or ADEA, we find that, even if the selectee was preselected,
no discrimination occurred. Ultimately, the agency has broad discretion
to set policies and carry out personnel decisions, and should not be
second-guessed by the reviewing authority absent evidence of unlawful
motivation. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997). Therefore, the Commission finds
that complainant failed to show that the agency's proffered reasons
are pretext for discrimination. Accordingly, we find the agency's
finding of no discrimination is supported by evidence in the record,
and we AFFIRM the agency's finding no discrimination.
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
September 17, 2009
Date
1 Complainant states on appeal, and the agency does not contest, that
complainant signed for a certified mail copy of the final agency decision
on March 15, 2008.
2 On July 19, 2007, the Treasury Complaint Mega Center dismissed
other allegations made by Complainant for failure to state a claim and
failure to initiate timely contact with an EEO Counselor, pursuant
to 29 C.F.R. �� 1614.107(a)(1) and (a)(2). The dismissed claims
alleged that complainant was discriminated against based on his race,
age, and/or reprisal when: (1) Between May and October 2002, he was
not selected for a number of appointments for temporary supervisory
positions within the Quality Assurance Division; (2) In or around
April 2004, he was not selected for the position of Supervisory Quality
Assurance Specialist, GS-1910-11, under Vacancy Announcement Number
DM-MP-04-09; (3) In or around January 2007, management, as part of a
settlement agreement, required complainant to take training to address
his communication skills, but ultimately did not provide the training;
(4) During the period 2002 to present, management allowed the evolution
of a management position for the exclusive benefit of a co-worker; (5)
The grade increase for a co-worker, in concert with his promotion in May
2004, is without merit; (6) In April 2006, management conducted a desk
audit which was biased in favor of the recruitment of a co-worker; (7)
On an unspecified date, management violated the 6th National Agreement
by not limiting an applicant to a single 120-day temporary assignment;
(8) In April 2004, management used suspect selection criteria for
Vacancy Announcement Number DM-MP-04-09; and (9) Management used biased
selection criteria for determining who was most qualified for 120-day
assignments in January and April 2007; and TD Case Number MINT-07-0547-F
10. Vacancy Announcement Number 07-USM1NT-186 was structured in such a
way as to solely benefit a co-worker and to dismiss and frustrate any
other candidate from making application. Complainant does not contest
the dismissal of these claims in the instant appeal. Accordingly,
the Commission considers these claims to be waived.
3 The Selecting Official for this position was involved in complainant's
prior EEO activity.
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0120081951
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081951