0120081242
04-15-2010
Geraldine Tzul-Richburg, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Geraldine Tzul-Richburg,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120081242
Agency No. 075100025
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal filed on January 14, 2008, from the agency's December 12, 2007,
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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.504(a). For the reasons that
follow, the Commission AFFIRMS the FAD.
ISSUE PRESENTED
The issue presented is whether complainant has established that the
agency discriminated against her on the bases of race (African American),
national origin (Hispanic-Belize),1 sex (female), disability (disabled
veteran), and in reprisal for prior protected EEO activity when, on June
30, 2006, she was not selected for a position as a Program Management
Specialist (PMS) in the Property Management Division (PM).2
BACKGROUND
Complainant contacted an EEO counselor on October 18, 2006, and filed
a formal complaint on January 9, 2007. Complainant alleged that the
agency discriminated against her as set forth in the statement of the
issue presented, supra. Following an investigation, complainant was
afforded notice of her right to request a hearing. After complainant did
not respond within the regulatory time-frame, the agency issued its FAD,
finding no discrimination. This appeal followed.3
Complainant began her service with the agency in approximately 2003.
In April 2006, when she filed her prior complaint, Agency No. 06-51-00079,
she worked as a PMS in the Travel Management Division, one of three
divisions in the Office of Administrative Operations (OAO), Office
of Administrative Services (OAS),4 Office of the Secretary.5 On May
20, 2006, she applied for the PMS positions referenced in footnote 2.
On June 30, 2006, she learned that she was not selected. On August 7,
2006, she sent an inquiry to the selecting official (SO), the Chief,
Property Management Division, asking "why I was not selected to fill
one of these positions." Email, August 7, 2006, 2:44 PM. She did not
receive a response within a week, and, on August 15, 2006, she requested
that her pending complaint (Agency No. 06-51-00079) be amended to include
her non-selection. On August 31, 2006, her request to amend was denied.6
She was referred to EEO counseling and told she had 15 days within which
to initiate EEO counseling. On October 18, 2006, complainant contacted
an EEO counselor. On December 15, 2006, the Counselor sent complainant
Notice of her right to file a formal complaint, which she received on
December 26, 2006, and she timely filed her formal complaint.
On March 29, 2007, complainant requested that her complaint be amended
to include a memorandum of counseling she received on March 22, 2007;
however, she did not provide an explanation or details of the matter.
The agency sent a request for underlying information to complainant and
her attorney of record. Although both received the letter, neither
complainant nor her attorney responded, and, on May 17, 2007, the
agency accepted the non-selection issue but dismissed the memorandum of
counseling issue pursuant to EEOC Regulations 29 C.F.R. �� 1614.107(a)(2)
and (7).
According to the record, complainant applied for all four positions
advertised. The Office of Human Relations (HR) reviewed all applications
and referred those individuals meeting the basic qualifications to the
SO on four certification lists, i.e., (a) employees who applied under
the merit promotion advertisement (No. OS-OAS-2006-0017) at Level II;
(b) employees who applied under the merit promotion advertisement
(No. OS-OAS-2006-0017) at Level III; (c) individuals who applied
under the DEU advertisement (No. OS-OAS-2006-0018) at Level II; and (d)
individuals who applied under the DEU advertisement (No. OS-OAS-2006-0018)
at Level III. The record shows that complainant's name appeared on both
certificates for merit promotion, i.e., (a) and (b); however, her name
was not listed on either DEU certificate (c) and (d). Certification lists
developed from DEU postings require the names of the top three candidates,
and DEU postings are treated as a new position.
For the selection process, the SO established a three-member panel to
interview and assess the candidates referred to him. The panel included
the SO, a senior member of the PM staff, and an IT specialist in MSS, OAS.
They interviewed all candidates on all certification lists, asking the
same questions of each one. Following the interviews, they discussed
the candidates, and rated them. The SO selected JC (Black female, no
disability, no prior EEO activity), an external candidate from the Level
II, DEU certificate; and JJ (White female, no disability, no prior EEO
activity), an external candidate from the Level III, DEU certificate.
After he received authority to hire a third staff member, he selected JD
(Black female, no disability, no prior EEO activity), from the Level II
merit selection certificate.
In her statement in the record, complainant stated that she applied for
the positions because she wanted to move out of the Travel Management
Division where she experienced discrimination and harassment from her
supervisor. Knowing she was "more than qualified for the positions,"
she was "shocked" that she was not selected. As to a remedy, she
requested an explanation for her non-selection and consideration of her
applications for the positions. In her complaint, complainant asserted
that her applications were not properly considered under both the merit
and DEU processes. She also stated that she heard that JC's sister
influenced the selection, and that her senior manager "held up" her
initial applications. She opined that her non-selection was because of
"my having filed an EEO complaint" and "nothing more than retaliation
for the filing of that complaint," referring to Agency No. 06-51-00079.
STANDARD OF REVIEW
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
ANALYSIS AND FINDINGS
According to the Commission's regulations, federal agencies may not
discriminate against individuals with disabilities and are required
to make reasonable accommodation for the known physical and mental
limitations of qualified individuals with disabilities, unless an agency
can show that reasonable accommodation would cause an undue hardship.7
See 29 C.F.R. �� 1630.2(o) and (p); see Appendix.
The analysis of a claim of disparate treatment is patterned after the
three-step scheme announced in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Once the complainant has established a prima facie
case, the agency is required to articulate a legitimate, nondiscriminatory
reason for its actions; to prevail, complainant must demonstrate, by a
preponderance of the evidence, that the agency's reason(s) for its action
was a pretext for discrimination, i.e., that the agency's reason was not
its real reason and that it acted on the basis of discriminatory animus.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Disparate treatment claims based on reprisal discrimination follow the
three-part scheme described in McDonnell Douglas Corporation v. Green,
supra. Complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (December 6, 1996). Specifically,
for a reprisal claim, a complainant must show that (1) s/he engaged in a
prior protected activity; (2) the official acting on behalf of the agency
was aware of the protected activity; (3) s/he was subjected to adverse
treatment by the agency; and (4) a nexus, or causal connection, exists
between the protected activity and the adverse treatment. Coats v. EEOC,
EEOC Appeal No. 0120044333 (May 17, 2007); Whitmire v. Department of
the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000.
For purposes of analysis of complainant's claims, we assume, arguendo,
without so finding, that complainant is an individual with a disability
and is entitled to coverage under the Rehabilitation Act.8 Further,
we assume, arguendo, without so finding, that complainant established a
prima facie case of disparate treatment discrimination on the bases of
race, disability, reprisal, national origin, and sex.
We now turn to consideration of the agency's reasons for its actions,
i.e., the reasons for the selections made by the SO. We note that
the agency's burden, while not onerous, must frame the factual issue
"with sufficient clarity so that [complainant] will have a full and fair
opportunity to demonstrate pretext." See Texas Department of Community
Affairs v. Burdine, supra. The SO (Black male, American, 30% disabled
veteran, prior EEO activity) described the referral and interview process,
the input from the panel members, and his eventual selections. First,
however, he noted that, prior to the vacancy announcements, he told
complainant that he was willing to provide her with a lateral transfer
to a position in his division if HR agreed, but he did not know if she
contacted HR.
In making his selections for the positions, the SO explained that he
had been without staff support for some time and was eager to find
new staff with broad working knowledge in property management at the
journeyman level of experience. HR referred the top candidates from
the DEU certification lists of external candidates. The SO selected
JC and JJ from the DEU certificates, asserting that both selectees had
extensive and recent experience in property management and "could hit the
ground running," in that JJ held a Level 3 position at a separate part
of the agency performing the same job, and JC, recently retired from
the military, had recent experience and rated highly with the panel.
As to the third selectee (JD), the SO stated that she had performed
similar PM duties in another office could also start work immediately
at a skilled level.
As to complainant, the SO noted that she was not on either DEU list,
and that he presumed this was because she was not ranked high enough or
already worked in OAO. He stated that complainant was not rated near
the top by the panel following the interviews because her knowledge of
property accountability was only rudimentary, and she lacked actual
experience in property management. We find that the agency has
articulated legitimate, nondiscriminatory reasons for its selection
decisions.
In the third step of our analysis, the ultimate burden of persuasion
returns to complainant to demonstrate pretext; that is, she must
show, through the presentation of probative evidence, that the reasons
articulated by the agency for its selection actions were not its true and
real reasons but were taken in order to discriminate against her and/or
the actions were influenced by legally impermissible criteria, i.e.,
race, disability, reprisal, national origin, or sex. See St. Mary's
Honor Center v. Hicks, supra. Complainant contended that she was
"more than qualified for the positions," that her applications were not
properly considered under both the merit and DEU processes, that her
applications were held up, and that her non-selection was the result of
reprisal for filing her prior EEO complaint. We note that the panel and
the SO concluded that complainant's knowledge and experience in PM work
was only basic and insufficient for the position. We do not find that
her application was "held up," given that it was filed within the time
periods allowed. We conclude that these arguments and other contentions
are not supported by the facts of record, do not demonstrate pretext,
and are not supported by probative and preponderant evidence.
The Supreme Court has addressed the question of pretext and comparative
qualifications, most recently in Ash v. Tyson Foods, Inc., 546 U.S. 454
(2006). The Court held that to infer evidence of pretext from comparative
qualifications, a complainant must show either (1) that the disparities
between the successful applicant's and [her/his] own qualifications
were "of such weight and significance that no reasonable person, in
the exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff," (2) that [complainant's] qualifications are
'clearly superior' to those of the selectee, or (3) that "a reasonable
employer would have found the [complainant] to be significantly better
qualified for the job," along with other evidence. Id. We find that
complainant's mere statements of rumors, personal beliefs and speculation,
without supporting probative evidence or argument, do not show that her
qualifications were so plainly superior that the agency's failure to
select her was discriminatory.
CONCLUSION
After a review of the record in its entirety, it is the decision of the
Commission to AFFIRM the agency's final decision, because the evidence
of record does not establish that discrimination occurred as alleged.
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
April 15, 2010
Date
1 In her complaint, complainant stated her color as "Hispanic," but the
agency considered that her allegation based on color was actually based
on national origin-Hispanic. Complainant acknowledged that her national
origin is Hispanic (from Belize). Declaration, May 7, 2007.
2 Documents in the record show that the agency posted the vacancy
announcements at issue at two pay-bands, Level II and Level III, under
Vacancy Announcement No. OS-OAS-2006-0017 for agency employees under
merit selection, and No. OS-OAS-2006-0018 for all U.S. citizens (DEU or
"delegated examining unit") (hereinafter, the PMS positions).
3 We note that neither party submitted comments on appeal.
4 OAS has four divisions: the Management Support Staff (MSS), the Office
of Space and Building Management, the Office of Real Estate and Major
programs, and the Office of Administrative Operations (OAO).
5 On October 1, 2006, complainant was reassigned to the Multimedia and
Mail Services Division, OAO, OAS.
6 Agency No. 06-51-00025 was resolved by a settlement agreement.
See Report of EEO Activity in OAS, from January 1, 2005, through May
26, 2007.
7 See 29 C.F.R. Part 1630 and Appendix to Part 1630-Interpretive
Guidance on Title I of the Americans With Disabilities Act (Appendix).
Our regulations and interpretive documents are available on the
Commission's website at www.eeoc.gov/federal.
8 Although we assume that complainant is an individual with a disability,
we note that veterans preference or status is not a protected basis for
filing an EEO complaint. See Ness v. USPS, EEOC Appeal No. 01981368
(November 21, 2000).
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0120081242
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081242