0120141163
01-28-2016
Rosemarie G.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rosemarie G.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120141163
Agency No. OCFO201300324
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 9, 2014, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency discriminated against Complainant based on her sex (female), age (59) and reprisal (prior EEO activity) when it did not select her for a Program Analyst position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Management Assistant at the Agency's Payroll Processing Branch, Government Employee Services Division facility in New Orleans, Louisiana. In March 2012, Complainant applied for a Program Analyst position under vacancy announcement NFC-12-198-GVM. The Program Analyst positions were available at the GS 7, 9 and 11 levels. Complainant applied at the GS-9 level and was listed as a Best Qualified candidate on the GS-9 Merit Promotion Certificate of Eligibles.
Complainant interviewed with three Agency officials (SO1, SO2 and SO3); she did not have an organizational relationship with any of them but worked on special projects in the past with SO1 and SO2. Complainant states that the selecting officials were aware of her sex but she was unsure if they knew her age or about her prior EEO activity.
Out of approximately 45 applicants, five selections were made under this vacancy announcement for Program Analysts in three separate sections: Quality Control, Section 2 and Contact Center. Two selections were made at the GS-7 level and three at the GS-9 level.
The selectee for Quality Control (QCS) was female, 49 years old with no prior EEO activity hired at the GS-7 level. The selectee for Section 2 (S2S) was female, 43 years old with no prior EEO activity hired at the GS-9 level. The Contact Center made three selections: Contact Center Selectee 1 (CCS1) was female, 50 years old with prior EEO activity hired at the GS-9 level;2 Contact Center Selectee 2 (CCS2) was female, 52 years old with no prior EEO activity hired at the GS-9 level and; Contact Center Selectee 3 (CCS3) was male, 28 years old with no prior EEO activity hired at the GS-7 level.
SO1 made the selection for the Quality Control position. He stated that he was aware of Complainant's sex but not her age or her prior EEO activity and that Complainant's non-selection was not based on any of these factors. SO1 stated that all the candidates were ranked based on their applications addressing their knowledge, skills and abilities (KSAs) and their responses to standardized interview questions and the best qualified candidates were selected. SO1 stated that the interview panel never discussed age, gender or EEO activity of the applicants.
SO2 made the selection for the Section 2 position. He stated that he was aware of Complainant's sex but not her age or her prior EEO activity. SO2 stated that the selectees were the highest ranked applicants, based on their KSAs and their interviews. SO2 denied discriminating against Complainant and stated that he did not believe that Complainant was more qualified than S2S.
SO3 stated that she was not a selecting official but that she only served on the interview panel. She stated that SO4 made the selections for the Contact Center. SO3 stated that she was aware of Complainant's sex; did not know her age but knew that Complainant was over 40 and; was not aware of Complainant's prior EEO activity. While SO3 was not a selecting official, she stated that she has no reason to believe that Complainant's non-selection was based on her sex, age or prior EEO activity.
SO4 stated that he made the selections for the Contact Center positions. He stated that he was aware of Complainant's sex but not her age or her prior EEO activity. SO4 stated that SO3 forwarded the scores from the KSAs and interviews and that he made his selection based on the applicants' total combined scores. He stated that Complainant's total score was 34, while the scores of those he selected were 40, 42 and 42. SO4 stated that he had no reason to believe that Complainant's non-selection was based on her age, sex or prior EEO activity.
On December 21, 2012, Complainant learned that she was not selected for one of the Program Analyst positions and initiated EEO counseling on January 4, 2013. Complainant's EEO case was not resolved during informal processing and she filed her formal EEO complaint on March 14, 2013. At the conclusion of the investigation, the report of investigation was received by Complainant on September 5, 2013. Complainant could not provide proof that she submitted a timely request for a hearing before an EEOC Administrative Judge so the Agency issued a final decision on January 9, 2014. On February 6, 2014, Complainant filed this instant appeal with the Commission.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal
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. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
In this case, Complainant has not established a prima facie case of discrimination based on sex and age because those who were selected were also female and over 40 years old. While five selections were made under the vacancy announcement, Complainant only applied for the GS-9 level, so QCS and CCS3 are not appropriate comparators because they were selected at the GS-7 level. In comparing Complainant to those hired at the GS-9 level, the record shows that S2S, CCS1 and CCS2 were all female and over the age of 40, like Complainant. Accordingly, Complainant cannot show that she was discriminated against based on her sex and age.
Additionally, Complainant has not established a prima facie case of discrimination based on reprisal because she has not established that the Agency was aware of her protected activity. All of the selecting officials stated that they were not aware of Complainant's prior EEO complaint. Complainant, we note, did not provide any evidence that the selecting officials were in fact aware of her prior EEO complaint.
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex, age and reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for not selecting Complainant for a Program Analyst position. The selecting officials reviewed and scored all the candidates based on their written applications and their responses to standardized interview questions. Those selected were the top five scoring individuals. Complainant's total score was 34, while those selected scored 40 or higher.
Complainant also has not met her burden of proving that the proffered reasons offered by management were pretext designed to mask the true discriminatory motivations. While Complainant alleges that she is more qualified than the selectees, she has not shown that the alleged disparities in qualifications between herself and the selectees were "of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees] over [Complainant] for the job in question." Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). As such, we find that Complainant did not establish by a preponderance of the evidence that she was discriminated against, as alleged.
CONCLUSION
After a review of the record in its entirety, 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 (M0815)
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, 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 (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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__1/28/16________________
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.
2 The record contains conflicting information about whether CCS1 was hired at the GS-7 or GS-9 level. For the purposes of this decision, the Commission will regard CCS1 as a GS-9 hire based upon the information provided by the selecting official who hired CCS1.
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