0120121794
08-06-2012
Debra A. Martin, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
Debra A. Martin,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120121794
Agency No. FSA-2011-00459
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 1, 2012 final decision 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Technician, CO-07, at the Agency's facility in DeWitt, Arkansas.
On June 15, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), age (over 40), and in reprisal for prior EEO activity when:
on January 29, 2011, she learned that she was not selected for the position of County Office Trainee (COT), CO-1101-05/09, advertised under Vacancy Announcement Number AR110006.
The record reflects that the COT positions were advertised two separate times under Vacancy Announcement Numbers AR100013 and AR110006, and Complainant was interviewed for both positions. Complainant was not selected for either position. The record reflects that in the instant complaint, Complainant was rated as qualified and referred to the selecting official for consideration along with eight other qualified applicants. The record further reflects that the two selectees received an overall score of 172 and 190 respectively, while Complainant received an overall score of 156.
After the investigation of the complaint, 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). In accordance with Complainant's request, the Agency issued a final decision on February 1, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its February 1, 2012 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of sex, age and reprisal discrimination. However, the Agency found that Complainant established a prima facie case of race and color discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext for discrimination. Specifically, the Agency found that the selectees had the highest scores, whereas Complainant did not.
The State Executive Director (SED), also Complainant's third-level supervisor, stated that she only participated in the application review process. SED stated that while she made the decision to fill two COT positions within the state of Arkansas, she was not the selecting official. SED stated that the state committee, consisting of five members, was the selecting official for the subject position. SED stated that she and others reviewed the application packages to determine the applicants' qualifications for the COT position. SED stated that because Complainant was considered qualified for the subject position, she was on the certification list of applicants. SED further stated that the committee interviewed each of the applicants and scored them based on their performance during the interviews. SED stated that the committee selected two selectees based on their highest scores and performance during the interviews.
With respect to Complainant's allegation that the selectees were pre-selected, SED denied it. Specifically, SED stated that she was not aware of any discussions concerning the applicants including Complainant "prior to the interviews. All candidates who apply were given the same consideration. I point out that we had an EEO observer present during the interviews and the selection process to ensure that all policies and procedures were followed precisely. I did not try to influence the members of the interview panel in any way as to who they recommended." Moreover, SED stated that she did not discriminate against Complainant based on her race, sex, color, age and prior protected activity.
One of the committee members (M1) stated that he and three other members reviewed the applicants' application packages and interviewed them for the subject positions. M1 stated that following the interviews, the committee recommended the two selectees based on their performance "in the interview and our belief as to who would do the best job."
M1 stated that the committee did not recommend Complainant for the subject position because she was not one of the top scoring candidates. Specifically, M1 stated that Complainant "did very well even though she was a little nervous. We had interviewed her before and she was more nervous the first time and she did a much better overall job in the interview the second time." M1 stated, however, Complainant "just didn't come out as one of the top two candidates this time."
Another committee member (M2) stated that the committee recommended the two selectees for the subject positions because they did very well during the interviews. M2 stated that the female selectee "did an outstanding job in every answer and came in number one on the scoring." M2 stated that the other male selectee "also did an outstanding job and was clearly number two in the ratings." M2 stated that the committee did not recommend Complainant because she was not one of the top applicants. Specifically, M2 stated that it was his recollection that during the first interview, Complainant "was very nervous and hesitant but in the second interview she was much more relaxed and did a good job with her answers. If fact, if there had been more openings the second time around she probably would have been selected. She did a very good job the second time around, but the two people who were selected, a white male and a white female, scored higher in the process."
Further, M2 stated that a named Agency employee "sat in on the interviews as an observer and explained that we could even given priority consideration to minorities or take into consideration race, age, gender, etc, but we decided that the fair and right thing to do was score each person on how they did in the interview regardless what their race or age was and that is what we did." Moreover, M2 stated that Complainant's race, sex, color, age and prior protected activity were not factors in the committee's decision to select the two selectees for the subject positions.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that a review of the interview scores for each applicant "reveals that the two selected applicants for the listed complaint were not the highest scored individuals. In fact additional documents were issued showing the SED hiring practices as it relates to race. These documents support the discriminatory practices by the SED." Complainant further argues that the scoring system is "unfair."
ANALYSIS AND FINDINGS
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).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. We further determine that 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.1
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 (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 (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
August 6, 2012
__________________
Date
1 Complainant does not challenge the August 9, 2011 partial dismissal issued by the Agency regarding four claims (that she was subjected to discrimination on the bases of race, sex, color, age, and prior protected activity when on she was not selected for four COT positions advertised under Vacancy Announcement Numbers AR100013, AR100002, AR080020 and AR070001). Therefore, we have not addressed these issues in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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