0120091770
06-30-2009
Steven F. Kernan, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Steven F. Kernan,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120091770
Agency No. FS-2006-02088
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 6, 2009 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.
In a formal complaint, dated May 24, 2007, complainant, a job applicant,
alleged that the agency discriminated against him on the bases of sex
(male) and age (over 40) when:
on April 18, 2006, he learned that he was not selected to the position
of Public Affairs Specialist, GS-1035-12, announced under Vacancy
Announcement Number AOS06-R6COL-001FS.
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 January 6,
2009, pursuant to 29 C.F.R. � 1614.110(b).
In its January 6, 2009 final decision, the agency found no discrimination.
Specifically, the agency found that complainant established a prima
facie case of sex and age discrimination because the selectee, outside of
complainant's protected groups, was selected for the position of Public
Affairs Specialist. The agency nevertheless found that management
articulated legitimate, nondiscriminatory reasons for complainant's
non-selection which complainant failed to show were a pretext for
discrimination.
The selecting official (SO) stated that she implemented a reviewing
panel of three agency officials to help her find the best candidate for
the position of Public Affairs Specialist. The record reflects that 16
candidates, including complainant, applied for the subject position and
were referred to SO for consideration. SO further stated that she was
looking for someone "who had demonstrated experience in the public affairs
and managing complex and controversial issues from a public affairs
aspect. I needed someone who had experience in working with local and
regional government agencies. I also wanted someone that had a natural
resources background and if possible experience working with wildfires
and/or other fire management aspects such as prescribed fire." SO stated
that the panel submitted a list of 4 to 5 candidates for consideration.
SO stated that she selected the selectee for the subject position because
she was the best qualified.
SO stated that in regard to public affairs experience category,
the selectee had worked since 1995 as a Fire Information Specialist
performing countless public affairs type duties such as developing
and implementing communication plans for fire and drought related
issues while complainant had some experience "but it was mainly on
the lines of marketing, business development and building training
programs for businesses to use to improve employee retention and sales."
Regarding complex and controversial issues within the public affairs
area, SO stated that the selectee "has much more experience in public
affairs with complex and controversial issues from the work she has done
on numerous large wildfires." SO further stated that some of the large
incidents the selectee had worked on as a Public Information Officer are
Thirty-Mile Fire and the World Trade Center bombing while complainant
only had experience in establishing and building new business and working
in the marketing arena of public affairs.
Further, SO stated that in regard to working with local and regional
government agencies, the selectee had worked with numerous local
government agencies including Tribal governments while complainant had
"limited work experience with local or regional government." Regarding
natural resource and/or fire background, SO stated that the selectee
had worked in natural resources since 1982 while complainant "has no
natural resource background." Finally, SO stated that complainant's
sex and age were not factors in her determination to select selectee
for the subject position.
One of the three panelists (P1) stated that the panel "individually
identified the strengths and weaknesses of each candidate in regards
to how they met the Knowledge, Skills and Abilities (KSA's) that were
contained in the vacancy announcement for the position." P1 further
stated that the panel then met to discuss how they individually evaluated
each candidate and "we each, individually, identified our top group
of candidates. We then came to agreement on which candidates to refer
to the selecting official."
On appeal, complainant contends that "a precedent needs to be established
and communicated in order to reform or deter the future Federal hiring
committee's and similar groups and or persons from pursuing a course of
action such as that which damaged the plaintiff [Complainant]. A positive
decision favoring [Complainant] will give additional incentive for
'applicant friendly' and fair Federal hiring practices and guidelines
that will lessen such stated discrimination tactics and favoritism in
the future [emphasis added]."
A claim of disparate treatment is examined under the three-party 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
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).
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.
As an initial matter, we find that complainant, on appeal, has not
provided any persuasive argument regarding the propriety of the agency's
finding of no discrimination. The Commission determines that the agency
conducted a thorough investigation.
Therefore, 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
June 30, 2009
__________________
Date
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0120091770
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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