EEOC Appeal No. 0120160388
02-28-2018
Toshia F. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Toshia F.,1
Complainant,
v.
Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160388
Agency No. ARGORDON11AUG03437
DECISION
On October 28, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 28, 2015 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a permanent hire, Supply Technician, GS-2005-06, Inventory Management Section, Logistics Branch at the Agency's Dwight D. Eisenhower Army Medical Center in Fort Gordon, Georgia.
On August 29, 2011, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her based on race (African-American) and age (52) when Complainant was not selected for the position of Supply Technician, GS-2005-07, advertised under Vacancy Announcement Number SCDZ11034274.
The Agency accepted the complaint for investigation. However, an examination of the Report of Investigation shows that there are no affidavits from any of the responsible management officials explaining the selection decision. The Investigator stated that she was unable to obtain sworn statements from the any of the responsible management officials, including the selecting official and any of the three-member selection panel. Investigator noted that the selecting official and one of the panel members had retired by the time the investigation was initiated and, despite her best efforts, she could not reach the other two panel members for an interview. Therefore, the record contains only brief summaries in the EEO Counselor's report of the counselor's interviews with the responsible management officials.
The record does establish that Human Resources referred fifteen qualified candidates (two white, one Hispanic/Latino, seven black/African Americans, and another multi-racial candidate), including Complainant, to the selecting official. The selecting official (Hispanic, age unknown) narrowed the list to three candidates, including Complainant, and forwarded them to a three-member panel (one African American, two Hispanic; ages unknown), which he created, for interviews and to provide him with recommendations.
The panel recommended the selectee (Hispanic, 20 years younger than Complainant) as its top choice, with Complainant as the first alternate. Based on the panel's recommendation, the selecting official chose the selectee.
Complainant argued that she was better qualified than the selectee because she was already working in the operating room, had been in the position for eight years, and served in the military for twenty years as a supply specialist. Complainant felt that the panel, which had two Hispanic members, was biased against her as an African American. Complainant stated that the selectee was only a temporary employee at the time of selection, did not have the same skills, and was only chosen because she was Hispanic and younger than her. Complainant stated that the interview questions and comments implied she was too old for the position.
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, on June 6, 2014, Complainant withdrew and requested an Agency final decision instead.
On September 28, 2015, in accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency determined that even though Complainant met her burden of establishing a prima facie case of discrimination, management had provided legitimate, nondiscriminatory reasons for its actions and that Complainant had failed to prove that those reasons were pretext for discrimination. Specifically, the Agency, citing to representations in the EEO counseling report, found that the selectee was chosen because "she interviewed well, was able to articulate that she could multi-task, and work well under pressure." The Agency acknowledged Complainant's work history, but ultimately determined that she failed to demonstrate that her qualifications were so plainly superior as to warrant a finding of pretext. The Agency decided that Complainant's allegations were general and unspecific and "unsupported by the totality of the record" and found no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she 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. 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).
Here, the Agency concedes and we find that Complainant has established a prima facie case of age and race discrimination by showing: (1) that she was approximately twenty years older than the selectee; (2) that she was of a different race than the selectee, the selecting official and two members of the selection panel (who shared the same Hispanic background); and, (3) that although she had already worked in a similar position for over eight years, and served in the military for twenty years as a supply specialist, the selectee, with markedly less years of experience, was selected over her.
The burden of production now shifts to the Agency to rebut this presumption of discrimination by articulating a legitimate, non-discriminatory reason for not selecting Complainant. While the Agency's burden is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded Complainant. Wilson v. Department of Veterans Affairs, EEOC Appeal No. 01995055 (December 21, 2001). Complainant is entitled to some rationale for management's actions that provides her with an opportunity to attempt to satisfy her ultimate burden of proving that the Agency's explanations were pretext for discriminatory animus. Id.
Here, the management officials responsible for the selection decision have failed to provide an explanation in the record for not selecting Complainant. The investigation obtained no sworn affidavits or other testimony from the selecting official or any of the three panel members. Without the appropriate affidavit or other evidentiary documents clearly demonstrating the specific reasons why Complainant was not selected, there is no legitimate, nondiscriminatory reason that has been set forth which Complainant can rebut. We acknowledge the record contains the EEO Counselor's representations of interviews with the officials involved in the selection. These representations, however, made in the EEO counseling report are insufficient to meet the Agency's burden. Even if we were to accept as valid evidence the unsworn statements reported by the EEO Counselor, they are simply too generalized and vague without any further explanations or documentation to provide the required articulation by the Agency.
In sum, we find that the Agency has simply failed to meet its burden of articulating legitimate, nondiscriminatory reasons for the selection decision. Thus, the Agency has not adequately rebutted Complainant's prima facie case of age and race discrimination. We therefore conclude that Complainant has prevailed in establishing that she was discriminated against based on age and race when she was not selected for the Supply Technician, GS-2005-07, advertised under Vacancy Announcement Number SCDZ11034274.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's finding of no discrimination in this complaint and REMAND the matter for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following remedial action within 120 days of the date this decision is issued (unless otherwise indicated):
1. Within 60 calendar days, the Agency shall place Complainant into a substantially equivalent position to the one listed in Vacancy Announcement Number SCDZ11034274, retroactive to the date of her non-selection. If Complainant declines the position, Complainant's entitlement to back pay will cease on the date on which she declines the position.
2. The Agency will determine the appropriate back pay, with interest, and other benefits due to Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant will cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and will provide all relevant information requested by the Agency.
3. The Agency shall consider Complainant's claim for compensatory damages, incurred as a result of the Agency's discriminatory actions. Within 15 days of the date this decision becomes final, the Agency shall notify Complainant of her right to present evidence to the Agency regarding her claim for compensatory damages. Complainant shall provide objective evidence that the damages in question were a result of the Agency's discrimination and of the amount of the claimed damages. Within 30 days of the submission of such evidence, the Agency shall issue a final agency decision on this issue, with appropriate appeal rights to the Commission.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at the Dwight D. Eisenhower Army Medical Center copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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) (1994 & Supp. IV 1999). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
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 (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.
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2018
__________________
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.
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