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.