Roxanne L. Ellingson, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionDec 27, 2000
01982580 (E.E.O.C. Dec. 27, 2000)

01982580

12-27-2000

Roxanne L. Ellingson, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Roxanne L. Ellingson v. Department of Health and Human Services

01982580

December 27, 2000

.

Roxanne L. Ellingson,

Complainant,

v.

Donna E. Shalala,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01982580

Agency No. IHS-774-94

DECISION

Complainant timely appealed the agency's decision finding no unlawful

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. In her

complaint, complainant alleged that she was discriminated against on the

bases of race (Native-American), national origin (Walker River Paiute),

and sex (female) when:

(1) Complainant was not selected for a GS-601-11/12 Injury Prevention

Coordinator position under Vacancy Announcement Number (VAN)

PXIHS-93-134;

Complainant was not selected for the Injury Prevention Coordinator

position under VAN PSIHS-93-134-1;

On September 23, 1993, complainant was reevaluated and found unqualified

for the Injury Prevention Coordinator position under VAN PXIHS-93-134-1,

when a new candidate roster was issued; and

On June 23, 1994, complainant was informed that she was not qualified

for the Injury Prevention Coordinator position advertised under VAN

PXIHS-94-119-1.

Complainant, a Tribal Community Health Representative employed by an

Indian Tribe, applied for federal employment as an Injury Prevention

Coordinator at the Indian Health Service's (IHS) Office of Environmental

Health on several occasions. When she was not selected, and eventually

found not qualified for the position, complainant sought EEO Counseling

and filed a formal complaint. The agency dismissed the claims for

untimeliness on November 28, 1994. Complainant appealed, and the

Commission vacated the agency's decision. See Ellingson v. Department

of Health and Humans Services, EEOC Appeal No. 01951612 (July 9, 1996).

On remand, the agency was ordered to redefine the claims and consider

whether they alleged a continuing violation. See id. Following the

remand, the agency accepted the claims for investigation on November

18, 1996. At the conclusion of the investigation, complainant was

informed of her right to request a hearing before an EEOC Administrative

Judge or alternatively, to receive a final decision by the agency.

When complainant failed to timely respond, the agency issued its final

decision finding no discrimination.

In its decision, the agency concluded that complainant failed to establish

a prima facie case of discrimination because she was not qualified for the

positions in question. The agency noted that three personnel officials

and a subject matter expert reviewed complainant's file during her

reevaluation, and all found complainant not qualified for the position

in question. Complainant was found unqualified because she lacked a

degree in a health science or allied science field. Even assuming that

complainant held an undergraduate degree in health science, the agency

noted that the Office of Personnel Management required a PhD or similar

advance degree, or at least one year of experience in the field at the

next lowest grade-level (GS-9). Upon review of complainant's salary

and current duties, agency officials found her work experience to be the

equivalent of a GS-5 or GS-6 position. Therefore, the agency determined

that complainant was not qualified for the GS-11 Injury Prevention

Coordinator position.

Even assuming that complainant established her prima facie case, the

agency found that it articulated a legitimate, nondiscriminatory reason

for its actions -- complainant was not qualified. According to the

agency, complainant failed to prove that this articulated reason was

a pretext for discrimination.

BACKGROUND

Complainant applied for the IHS �Injury Prevention Specialist Fellowship

Program.� This program was created to train health professionals and

�develop a stronger and permanent base from which to build effective

injury control programs,� but the program acknowledged �all graduating

fellows will not be placed in IHS or tribal position working exclusively

in injury prevention.� To obtain a fellowship, applicants needed �a

Bachelor of Science degree in a health-related field.� The program

preferred applicants with �Master in Public Health or Master of

Science degree in a related field with at least 5 years experience in

public health.� Complainant only possessed a Bachelor's in Business

Administration, and twenty-four credit hours of graduate-level training

in Tribal Management. Despite her lack of health-related education,

complainant was accepted into the fellowship program class of 1993.

During the same time period, complainant applied for the Injury

Prevention Coordinator position. The position description did not list

any educational requirements, but VAN PXIHS-93-134 required �major

study in an academic field related to the health sciences or allied

sciences appropriate to the work of the position.� It further demanded

specialized experience of �52 weeks at least equivalent to GS-9, or 3

full years of progressively higher level graduate education or Ph.D. or

equivalent doctoral degree.�

Initially, complainant was the only applicant referred to the selecting

official as qualified. The selecting official, an officer in the

Commission Corps (CC), returned the referral roster to personnel,

and requested that they re-advertise the position to allow for more

applications. The position was reopened for applications under VAN

PXIHS-93-134-1. Personnel referred three applicants as qualified,

including complainant.

Upon receiving the second referral roster, the selecting official chose

complainant for the position, believing she was the most qualified

applicant entitled to Indian Preference.<1> The concurring official,

who was the selecting official's direct supervisor and also a CC officer,

refused the selecting official's choice. He believed that complainant

was not qualified for the position, and returned complainant's application

to personnel for a reevaluation of her qualifications.

Several personnel officials and a subject matter expert reviewed

complainant's application. They concurred that complainant lacked the

relevant education or work experience to fill the position. The officials

found that complainant's participation in the fellowship program did not

overcome her inadequate education or work experience. As noted in an

unsigned statement attributed to the selecting official, �[The program]

alone does not guarantee nor qualify [one] for a position.� The

agency found complainant not qualified for the position, and selected

a Native-American male CC officer for the position. The agency then

removed the selectee from the position, and advertised the position for

a third time (VAN PXIHS-94-119).<2> It then discovered that the VAN

listed the wrong duty station, and corrected this error with a fourth

advertisement, under VAN PXIHS-94-119-1. Complainant, applied again,

but was found unqualified.

ANALYSIS AND FINDINGS

To establish a prima facie case of discrimination in hiring, complainant

must show that she is a member of a protected group, applied for the

position, was qualified, but an individual from outside complainant's

protected group was selected. See McDonnell Douglas Corp. v. Green, 411

U.S. 792(1973). Then the burden of production shifts; the agency must

articulate a legitimate nondiscriminatory reason for its actions. See

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).

Once the agency articulates a nondiscriminatory reason for its actions,

then complainant must prove by a preponderance of evidence that the

agency's reason "w[as] a pretext for discrimination." St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 507-508 (1993). Although the burden of

production shifts back and forth, the ultimate burden of proof remains

with complainant. See Burdine, supra at 253.

The Commission finds that complainant established her prima facie case.

The agency found complainant qualified for the position on two separate

occasions, but then retracted its decision. The agency also found

complainant's education sufficient to enter the fellowship program,

despite complainant's lack of a degree or graduate work in the field of

health science. However, the record does not contain sufficient evidence

to determine whether the agency's articulated reason (complainant's

lack of education) was pretext. The record contains complainant's

application materials and the requirements for the Injury Prevention

Coordinator position; it does not contain any information from the other

applicants. Without this information, the Commission cannot determine

whether the agency consistently applied its educational requirements for

all applicants. Such information, particularly that of the individual

selected (who later lost the position because he was not entitled to

preference), is relevant to whether the agency's articulated reasons were

legitimate. Accordingly, the Commission vacates the agency's decision.

CONCLUSION

Accordingly, the agency's finding is VACATED, and the claims are REMANDED

for supplemental investigation as provided below.

ORDER

The agency is ordered to perform the following within 60 calendar days

of the date this decision becomes final:

Obtain the SF-171 forms, resumes, transcripts, and/or any other

application materials submitted by the applicants that personnel listed

as qualified on any referral roster for the GS-601-11/12 Injury Prevention

Coordinator position in question.

If not available through these application materials, obtain information

of the educational background and work experience of other applicants

referred as qualified for the position.

After obtaining the information described in (1) and (2) of this Order,

the agency must issue a new decision (with appeal rights to this

Commission) concerning whether complainant was discriminated against.

This decision must consider whether other applicants without the

�required� educational background were found qualified for the position.

A copy of the new final decision must be sent to the Compliance Officer

as provided herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement of

the order. 29 C.F.R. � 1614.503(a). The complainant also has the right

to file a civil action to enforce compliance with the Commission's order

prior to or following an administrative petition for enforcement. See 29

C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,

the complainant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action

for enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 19848,

Washington, D.C. 20036. 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

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

December 27, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1The record reveals that the agency determined that complainant was

eligible for �Indian Preference.� The Indian Preference Act, 25 U.S.C. �

472, requires agencies to grant preference to any Native-American who

meets the criteria for �hiring, reassignment, transfer, competitive

promotion, reappointment, reinstatement, or other personnel action

intended to fill a vacancy.� Indian Health Service Circular No. 87-2.

The act also requires the agency to establish separate hiring criteria

for Native-American members of federally recognized Indian Tribes.

The Commission does not enforce this act. Further, failure to apply the

act, by itself, is not proof of Title VII employment discrimination.

See Dionne v. Shalala, 209 F.3d 705 (8th Cir. 2000), reh'g en banc

den. 2000 U.S. App. Lexis 15321 (June 27, 2000), petition for cert. filed

(U.S., Sept. 25, 2000) (No. 00-468).

2The selectee was granted Indian Preference when selected. Subsequently,

the agency learned that the selectee did not belong to a federally

recognized tribe. Therefore, the agency determined that the selectee

was not entitled to preference under the Indian Preference Act, and the

position was taken away from him.