Complainant,v.Aaron S. Williams, Director, Peace Corps, Agency.

Equal Employment Opportunity Commission

Feb 7, 2013

0120113231 (E.E.O.C. Feb. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Aaron S. Williams,
Director,
Peace Corps,
Agency.

Appeal No. 0120113231

Hearing No. 570-2010-01178X

Agency No. PC-10-07

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
March 28, 2011 final Agency decision (FAD) concerning her 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.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment with the Agency. Complainant had previously served at the Agency as a Peace
Corps Volunteer and later as an Administrative Officer in Guyana. On November 2, 2009, the
Agency posted a vacancy announcement for a Country Director position for multiple positions
worldwide. Complainant received a telephone interview on February 3, 2010, by the Expert
Consultant to Overseas Recruitment and Selection Support (EC). EC believed that
Complainant’s interview went well, but Complainant admitted during the interview that she
had little experience in program development. After the interview, EC contacted
Complainant’s former supervisor (S1) for a recommendation. S1 did not provide a positive
recommendation. Additionally, S1 recommended that EC speak with the former Chief
Administrative Officer (Chief). The Chief did not provide a positive recommendation either.
As a result, EC did not recommend Complainant for the next round of interviews.

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After learning that she had not made the next round of interviews, Complainant contacted the
Manager of the Overseas Recruitment and Selection Support (M1) and complained that her
race and age were brought up during her interview. M1 spoke with EC who informed him that
Complainant brought up her race during the interview, but assured M1 that Complainant’s race
and age were not factors in her decision. M1 responded to Complainant stating that his office
supports EEO policies and that it was not uncommon for capable applicants to be found non-
competitive with others in the pool. Complainant responded that she believed her
qualifications should have at least gotten her to the next round of interviews.

On April 6, 2010, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the bases of race (African-American) and age (61) when she was not selected for
a Country Director position on February 18, 2010. At the conclusion of the investigation, the
Agency provided Complainant with a copy of the report of investigation (ROI) and notice of
her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew her request. In accordance with Complainant’s
request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b) on April 8, 2010.

In the FAD, the Agency determined that Complainant had established a prima facie case of
discrimination and that management had articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, EC affirmed that Complainant’s application did not merit further
consideration due to her lack of experience in grassroots program development and due to
feedback from her former supervisors. Complainant admitted to having no understanding of
programming and those who worked with her stated that she did not have the representational
skills or temperament to be a Country Director. S1 and the Chief confirm that based on their
past experiences with Complainant, they did not recommend her for the position.

As to Complainant’s pretext arguments, the Agency determined that Complainant admitted that
she, not EC, originally introduced both race and age during her telephone interview.
Complainant stated she did so in a general way and that EC asked her to be more specific. EC
denied that she asked Complainant to identify her race or age. In addition, Complainant
challenged S1 and the Chief’s negative comments about her. The Agency concluded that
Complainant had presented no evidence that EC’s reasons for her non-selection were
pretextual. As a result, the Agency concluded that Complainant had not been discriminated
against as alleged. Complainant submitted no arguments or contentions on appeal.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
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The prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

In the instant case, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for it actions. Specifically, EC affirmed that her decision to not
recommend Complainant for the next round of interviews was based on Complainant’s lack of
experience in grassroots program development and feedback that she received from
Complainant’s prior supervisors. ROI, Ex. F2a, at 2. EC maintained that the Agency was
looking for someone with experience and knowledge of international grassroots development.
EC noted that ensuring that Peace Corps Volunteers can be matched to good local grassroots
development programs and assignments was one of the most important responsibilities of a
Country Director. Id. A review of the Country Director position description reveals that
“Program Planning and Management” consists of 50% of the duties of the position. ROI, Ex.
F6. During her interview, Complainant admitted that she had little interest in or experience
with program development. ROI, Ex. F2a, at 2.

In addition, EC was informed by S1 that Complainant was a very good Administrative Officer,
but he could not recommend her for a Country Director position based on her uneven
temperament. ROI, Ex. F2a, at 2. Further, the Chief used the term “moodiness” in
describing Complainant and said she should not be a candidate for the Country Director
position. Id. The Chief added that Complainant was an average performer and he could not
recommend her for the Country Director position because she was never an outstanding
performer. ROI, Ex. F5, at 2. EC affirmed that a Country Director needed to be able to
represent the Agency in a positive manner and feedback about Complainant and her lack of
programming experience cast doubt about her ability to do that. ROI, Ex. F2a, at 3.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256.

In attempting to establish that the Agency’s reasons were pretextual, Complainant contends that
EC asked about her race and age during the interview. Complainant admits, however, that she
initially revealed her race and age during the interview on her own volition. EC denied that
she asked Complainant about her race and age during the interview or that either played a role
in her decision. Further, Complainant argued that EC should not have relied upon the
feedback she received from S1 and the Chief because it was biased and not based on facts.
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Complainant chose to withdraw her request for a hearing. The Commission does not have the
benefit of an Administrative Judge’s credibility determinations after a hearing; therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that the record is devoid of any evidence that Complainant's protected
classes were factors in any of the Agency’s actions. At all times, the ultimate burden remains
with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that the Agency acted on the basis of discriminatory animus.
Complainant has failed to carry this burden. Thus, based on the evidence presented herein, the
Commission concurs with the Agency that Complainant failed to prove management’s reasons
for her non-selection were pretext for unlawful discrimination.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the FAD because the preponderance of the evidence of record does not establish that
discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 9-18 (Nov. 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.

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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 (Z0610)

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

February 7, 2013
Date