Colene R.,1 Complainant,v.Wendy Spencer, Chief Executive Officer, Corporation for National and Community Service, Agency.Download PDFEqual Employment Opportunity CommissionApr 8, 20160120142466 (E.E.O.C. Apr. 8, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colene R.,1 Complainant, v. Wendy Spencer, Chief Executive Officer, Corporation for National and Community Service, Agency. Appeal No. 0120142466 Agency No. 04-13-014 DECISION Complainant filed an appeal from the Agency’s May 14, 2014 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a State Program Specialist, at the Agency’s work facility in Atlanta. On September 10, 2013, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the bases of her race (Caucasian) and age (57) when: 1. On or around July 3, 2013, Complainant was informed by the Southern Cluster Manager that she had not been selected for the position of Mississippi State Program Specialist, Vacancy Announcement Number: CNS-13-181-897534. 2. On or around May 21, 2013, Complainant’s request to be transferred to the Mississippi State Office was denied by the Southern Cluster Area Manager. 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. 0120142466 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. The Agency determined that no discrimination occurred with respect to claim (1). The Agency dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with an EEO Counselor in a timely manner. The Agency stated that Complainant became aware of her denied transfer on May 21, 2013, but did not contact an EEO Counselor until July 26, 2013, after the expiration of the 45-day limitation period. With respect to claim (1), the Agency stated that Complainant was one of six individuals interviewed for the relevant position. The interview panel was composed of the Southern Cluster Area Manager (AM), the Mississippi State Director, and a North Carolina-based State Program Specialist. The selectee was an African-American, age 34. The Agency stated that Complainant believed she was not selected in part because all of the interviewing officials were African-American. The Agency noted that Complainant maintained that she was significantly more qualified than the selectee. Complainant stated that she has twelve years of experience as a State Program Specialist in contrast to the selectee’s three years of VISTA experience. According to Complainant, she has experience in every aspect of the relevant position, including volunteer support, programming and program development in both VISTA and the Senior Corps. Complainant argued that in addition to the selectee having only three years of experience as a VISTA member, she had no experience working with the Senior Corps. Complainant also stated that the selectee was not working for the Agency when she was chosen for the position. Complainant asserted that the Mississippi State Director recommended her for the position. Complainant pointed out that the AM’s two-year selection history revealed that 86% of those he selected were under the age of 40. The Agency stated that each of the six applicants were asked the same interview questions and that both Complainant and the selectee interviewed well and were among the top three candidates for selection. The AM rated Complainant second best as he considered the selectee more qualified based on her interview responses being more specific to the mission. The Agency explained that the Director of the Office of Field Liaison concurred in the AM’s recommendation that the selectee was the best candidate based on the quality of her professional references. According to the AM, Complainant’s responses to questions intended to demonstrate the core skills of the position were less robust and explicit than that of the selectee, and her responses to other questions concerning program knowledge were not as articulate or detailed as that of the selectee. According to the North Carolina-based Program Specialist, the selectee responded with detailed specific examples of how her skillset met or exceeded the job requirements. The Program Specialist stated that the selectee demonstrated in her responses, leadership ability, strong communication, computer skills and computer knowledge. The Agency considered these statements to be legitimate, nondiscriminatory reasons for its selection. 0120142466 3 In attempting to establish pretext, Complainant argued that the Mississippi State Director’s opinion, that she had the best interview, should have mattered most since he would be the selectee’s supervisor. The Agency noted that the AM stated that the Mississippi State Office had failed in the previous year and that may have caused the AM not to credit his opinion as much as the North Carolina-based Program Specialist. The Agency rejected Complainant’s contention that the selectee was not qualified for the position. The Agency pointed out that the selectee was referred as noncompetitive eligible, had a relevant Master’s Degree, and that each of the three officials conducting the interview stated that the recommendation was based on the interview responses. With regard to Complainant’s contention that 86% of all selections for the two years preceding the selection were under the age of 40, the Agency states that this argument is not probative of age being a factor in the instant selection without evidence as to the ages of the referred eligible applicant pools. The Agency notes that if this data was credited as to age, then the data concerning race would discount it as a basis since the Director of Field Liaison has chosen 22 Caucasians out of 27 selectees. The Agency determined that Complainant failed to establish pretext. CONTENTIONS ON APPEAL On appeal, Complainant contends as to the dismissal of claim (2) that she was not aware she could file a complaint concerning a denial of transfer. Complainant further states that she did not want to risk her chances of competing for the Mississippi position under the vacancy announcement by filing a complaint regarding her denied transfer. With regard to claim (1), Complainant maintains that the Mississippi State Director told her that her interview responses were excellent. Complainant states that the Mississippi State Director had much more experience in her position than the North Carolina-based Program Specialist and therefore was more qualified to evaluate applicants for a State Program Specialist position. Complainant further states that she was not asked four of the interview questions. According to Complainant, the AM and the North Carolina-based Program Specialist appeared to base their choice of the selectee on her ability to answer questions in a more enthusiastic way than her rather than on qualifications and experience necessary for the position. Complainant questions how the selectee could be more qualified than her given that she was instructed to help train the selectee. In response, the Agency asserts that Complainant did not initiate contact with an EEO Counselor concerning her denied transfer until more than sixty days after the denial, and thus her EEO contact was untimely. With regard to Complainant’s nonselection, the Agency maintains that while Complainant provided adequate answers to interview questions, the selectee provided more detailed responses to the questions and gave a better indication of how she would successfully perform the core skills of the position. The Agency notes that the Director of the Office of Field Liaison concurred with the AM’s recommendation of the selectee because the selectee’s professional references were strong. Specifically, the selectee’s most recent supervisor described her as extremely smart and dedicated with strong analytical skills and a methodical approach to work. The same reference indicated that the selectee follows instructions and is an independent thinker who takes initiative. According to the 0120142466 4 Agency, the selectee’s second reference, another former supervisor, described her as a creative problem-solver with a strong commitment to service. The Agency further states that the selectee has three AmeriCorps member experiences and relevant degrees for the State Program Specialist position, a Master’s Degree in Political Science from the University of Akron and a Bachelor’s Degree in Political Science from Miami University. The Agency points out that Complainant in contrast has two Associates Degrees from two community colleges. The Agency states that Complainant failed to establish that her qualifications were plainly superior to the selectee’s qualifications. The Agency rejects Complainant’s argument that the fact that all the interview panelists were African-American influenced the selection process. The Agency notes that the selecting official, the Director of Field Liaison, is Caucasian. ANALYSIS AND FINDINGS With regard to claim (2), Complainant‘s transfer was denied on May 21, 2013. Complainant did not initiate contact with an EEO Counselor until July 26, 2013, after the expiration of the 45-day limitation period. Upon review of the reasons submitted by Complainant on appeal for her untimely EEO contact, we find that they do not constitute adequate justification for her failure to initiate contact with an EEO Counselor within the 45-day limitation period. Thus, the Agency’s dismissal of this claim is AFFIRMED. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he 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. McDonnell Douglas, 411 U.S. at 802. Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). We shall assume arguendo that Complainant set forth a prima facie case of race and age discrimination as to her nonselection. The Agency explained that it chose the selectee rather than Complainant based on the better quality of her interview responses and the strong, positive comments from her professional references. We find that the Agency articulated legitimate, nondiscriminatory reasons for its selection. 0120142466 5 Complainant attempts to establish pretext by arguing that her years of experience rendered her a more qualified candidate for the position than the selectee. Complainant may be able to establish pretext with a showing that her qualifications were plainly superior to those of the selectee. Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647. F.2d 1037, 1048 (10th Cir. 1981). Complainant has presented evidence showing that she has twelve years of experience as a State Program Specialist and she manages a portfolio of 22 Senior Corps and VISTA projects. Complainant also points out that the Mississippi State Director, who was the supervisor for the position at issue, considered her the best choice for the position. It is evident that Complainant possessed several notable credentials in support of her application for the position. However, the selectee also possessed several strong qualities in support of her application. The selectee’s credentials included three years of experience as a VISTA member, two relevant academic degrees, better interview responses as judged by a majority of the interview panelists, and strong professional references. We find that persuasive evidence does not exist to establish that Complainant was so better qualified for the position than the selectee that discrimination could be inferred from her nonselection. As to Complainant’s claim concerning the composition of the interview panel, we discern no evidence that the fact that each member is African-American affected the selection decision. Moreover, we observe that the selecting official, the Director of the Office of Field Liaison, is Caucasian. We also agree with the Agency that Complainant’s contention that 86% of all selections for the two years preceding the selection were under the age of 40, is not probative of age being a factor in the instant selection without evidence as to the ages of the referred eligible applicant pools. CONCLUSION The Agency’s determinations that no discrimination occurred as to claim (1) and its dismissal of claim (2) on the grounds of untimely EEO contact are AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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: 0120142466 6 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), 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, 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 (S0610) 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 (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 0120142466 7 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. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 8, 2016 Date Copy with citationCopy as parenthetical citation