0120091903
08-28-2009
Ursula Wasserbach, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Ursula Wasserbach,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120091903
Agency No. CRC 08-03-066
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 10, 2009 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.
During the period at issue, complainant was employed as a Benefits Advisor (BA), GS-11, at the agency's Employee Benefits Security Administration (EBSA), Philadelphia Regional Office in Philadelphia, Pennsylvania.
On March 25, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of color (white) and age (over 40) when she was not selected for the following positions:
1. Investigator (Pension) Grade/Series GS-1801-09, advertised under Vacancy Announcement No. PH-07-154; and
2. Investigator (Pension) Grade/Series GS-1801-11 advertised under Vacancy Announcement No. PH-07-157.
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 26, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its February 10, 2009 final decision, the agency found no discrimination. Specifically, the agency found that regardless of whether complainant established a prima facie case of discrimination based on color and/or age, management nevertheless articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Regarding claim 1, the Regional Director stated that she was the selecting official (SO) for the positions of Investigator (Pension), GS-9, advertised under Vacancy Announcement No. PH-07-154 and Investigator Pension, GS-11, advertised under Vacancy Announcement No. PH-07-157. SO stated that she anticipated that more than one candidate would be selected for the subject positions, so alternative recruitments were issued to reach candidates eligible under the Federal Career Intern Program, the Student Career Unemployment Program, in addition to Merit Staffing and Delegating Examining Authority vacancy announcements. SO stated that the BA position is a very important job because the BAs have frequent contact with the public. SO also stated that the BAs respond to public inquiries on the ERISA [Employment Retirement Income Security Act], inform callers of their rights under ERISA, and plan officials on general information on limited compliance areas.
Further, SO stated that she implemented an interview panel of three agency officials. SO stated that she conducted the second round of interviews after the panel conducted the first round of interviews and made recommendations to her on the most qualified candidates. SO stated that the panel did not include complainant "on the list of seven candidates referred to me to conduct second round of interviews." SO stated that she chose the selectee for the subject GS-9 position because he was the most qualified. SO stated that the selectee worked as an attorney in corporate law, real estate transactions, financial investments and trust law. SO stated that the selectee was chosen over complainant because "he had experience in the conduct of investigations, including specific experience in various phases of the investigative process."
SO stated that she selected the selectee for the subject GS-11 position because she was best qualified. SO stated that the selectee is an attorney with an undergraduate degree in finance, and has extensive financial and legal background. SO stated that the selectee's combined financial and legal background "provided her with the ability to conduct the complex financial analysis and application of facts to the law required of an investigator."
SO stated that complainant was not selected for the subject GS-9 and GS-11 positions because her educational background, work experience, and her skills and abilities "did not compare favorably to the candidate selected for this investigator position." Specifically, SO stated that complainant's degree in education and her experience as a Benefit Advisor "did not enhance her ability to conduct the in-depth and complex financial analysis and application of the law required for an investigator, when compared to the candidate selected." SO stated that during her many years with the agency, complainant, "unlike some other BAs, has not taken advantage of the opportunities to improve her skills in these areas, such as taking Certified Employee Benefits Specialist courses or similar courses that offer classes in the finance and investments of employee benefits plans."
With respect to complainant's assertion that she was the best qualified for the subject positions because she has been at the agency for ten years, SO stated that complainant's assertion "is not true." SO further stated that "the best qualified candidate for a position is not based solely on the length of service with an agency." Furthermore, SO stated that complainant's color and age were not factors in her determination to select the selectees for the subject GS-9 and GS-11 positions.
One of the three panelists (P1) for the positions of Investigator (Pension), GS-9 and GS-11, advertised under Vacancy Announcement Nos. PH-07-154 and PH-07-157 stated that the panel did not consider complainant "among the strongest candidates for several reasons. Unlike those candidates who were selected, [complainant] did not have an educational background in law or business. Further, she was not able to demonstrate in her current position comparable analytical skills of the top candidates. For instance, when questioned, in her ten years with EBSA, she could not recall during her interview a single instance where she conducted any independent research in an area of ERISA."
Another panelist (P2) stated that the selectee for the subject GS-9 position was selected because of his extensive legal experience and "his law practice focused on ERISA related issues with the IRS and DOL." P2 stated that the selectee for the subject GS-11 position because she "performed extremely well in her interview and even discussed a time where she disagreed with a finding her supervisor made on one of her cases and spent a significant amount of time researching the issue and presenting a written recommendation to her supervisor."
P2 acknowledged that complainant has been at the agency for ten years, but that complainant "has not continued to expand her knowledge base or skills in the area of employee benefits. The length of her employment with EBSA did not outweigh the selectee's other qualifications." P2 stated "specifically, when asked what made her the best candidate, [complainant] stated that she had been here the longest and was the most loyal to the agency. Specifically, complainant stated "she had been here the longest, had done her job and had excellent references. She said that, after 10 years, this is who she is and management has seen who she is, and she has been loyal. Others have come and gone and she is still here.""
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).
We find that after a careful review of the record, the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
On appeal, complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. 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
August 28, 2009
__________________
Date
2
0120091903
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091903
7
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