0120121111
05-11-2012
Irvin R. Kretzer, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Irvin R. Kretzer,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120121111
Agency No. DOS-F-056-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 9, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Payroll Systems Specialist, GS-12, at the Agency's Global Financial Service Center facility in Charleston, South Carolina.
On April 11, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of disability (hypothyroidism, heart disease, service connected leg, and back injuries) and age (over 40) when:
on March 24, 2011, he was not selected for the position of Lead Payroll System Specialist (Analyst), GS-13, advertised under Vacancy Announcement No. AN347546.
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 December 9, 2011, pursuant to 29 C.F.R. � 1614.110(b).
In its December 9, 2011 final decision, the Agency no discrimination. The Agency found that Complainant established a prima facie case of disability and age discrimination. The Agency further found that Agency management nevertheless articulated legitimate, nondiscriminatory reasons. Specifically, the Agency stated that the selectee was chosen for the Lead Payroll System Specialist position because he had specific analytical experience whereas Complainant did not.
The selecting official (SO) stated that he implemented an interview panel of four Agency officials to interview eight certified candidates, including Complainant. SO stated that following the interviews, the panel submitted its recommendation to him. Specifically, SO stated that he studied the panel's "spreadsheet (without names) and looked for anomalies; the entire group appeared to act independently and consistently. I reviewed the applications. I will add that two of the panel members were from outside our Directorate (i.e. I do not supervise them)."
SO stated that after a review of the record, he chose the selectee for the Lead Payroll System Specialist position because he was best qualified. SO stated that the subject position "is a lead position in that the incumbent does not have any supervisory authority over his/her team; it is also a senior position and the incumbent must interact and assist with lower grade technicians. In other words, you need to cultivate working relationships. I feel [selectee] is our best analyst in this area. Our system is largely un-documented and requires a commitment to apply analytical skills in order to close the developmental gaps and develop solutions. In addition, we use and seek out automated solutions and/or processes wherever possible. In both of these areas, I feel [selectee] is the best we have."
With respect to Complainant's allegation that he should have been selected because he had more experience in supervising with his military background, SO stated that the subject position was not a supervisory position and had always been non-supervisory, as it is a lead position. Specifically, SO stated that he reviewed all of the candidates' applications and "I recall [Complainant's] military experience because it is similar to my own. As such, I am qualified to assess the relevance. In addition, I will state that the subject position is not a supervisory position."
With respect to Complainant's allegation that SO informed him that initially management was going to post the subject vacancy as a non-supervisory assignment, however, it subsequently decided to post the assignment with supervisory responsibilities, SO denied it. Specifically, SO stated "first, I never had any conversations with any candidate about the posting of this vacancy. Second, this position has always been non-supervisory. It is a 'lead' position and always has been. This vacancy required a review of the position description; I submitted it to classification with a proposed change to 'Senior' as opposed to 'Lead' but the nature of the duties and responsibilities remained the same. The classifier assigned to the case changed it back to Lead [emphasis in its original]."
SO stated that in regard to Complainant's allegation that the selectee was pre-selected because he was provided various training opportunities and attended Global Foreign Affairs Compensation System (GFACS) implementation meetings, such an assertion was not true. Specifically, SO stated that everyone in the organization is afforded a chance to develop as it was a key in the organization's success. SO stated "I believe we are very judicious in addressed it. Our most common approach is to send out invitations or communications asking for volunteers; this is an attempt to give everyone an opportunity. Special projects are the same except there are times when the person's knowledge/experience does become a factor. To the best of my knowledge, whenever we have training, all in the particular functional group have a chance to be picked to attend, I do not believe we have singled out [Complainant] for any specialized training."
Moreover, SO stated that Complainant's disability and age were not factors in his determination to select selectee for the subject position.
One of the panelists (P1) stated that all candidates were asked the same interview questions and Complainant's interview lasted longer than others. Specifically, P1 stated that during his interview, Complainant "rambled a lot and went off in other directions, not really answering or relat[ing] it to his experience in FSN payroll." P1 stated that during the relevant time she was not aware of Complainant's disability. P1 stated that in her ranking recommendation, the selectee was ranked number one, while Complainant was ranked sixth. Furthermore, P1 stated that Complainant's disability and age were not factors in its recommendation that the selectee should be selected for the subject position.
Another panelist (P2) stated that all candidates were "asked the same questions - no deviations." P2 further stated that the panel allowed each candidate "to take as long as the needed to answer questions. There was no time limitation. If [Complainant] took 1 hour and 20 minutes, it was the time he took to answer all questions." The record reflects that in her notes during Complainant's interview, P2 stated that Complainant made several inappropriate comments. P2 found Complainant to be "a bit condescending" and a sexist, and his frequent use of the word "crap." P2 also noted that Complainant made inappropriate comment "about a worker being older and the buttheads + then worked it out."
Further, P2 stated that the selectee was number one in her recommended list while Complainant was ranked second. Finally, P2 stated that she did not discriminate against Complainant based on his disability and age.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no discrimination. For instance, Complainant argues that there was preselection involved in this case because the selectee was "given specialized training, attending priority meetings that only the GS13s and above attended."
Complainant further states "the failure of the investigator to ask all the questions I raised left many things open 'who wrote the questions for the interview, who chose the outside panel members. In my opinion not knowing this and not asking it allowed for the selected employee to be the best at the interview and allowing for him to have an unfair and discriminatory advantage over me."
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).
Complainant, on appeal, argues that the report of investigation was inadequate. However, the Commission determines that the investigation was properly conducted, and that Complainant provided no persuasive arguments indicating any improprieties in the Agency's findings.
With respect to Complainant's contention that preselection was involved, the Commission notes that Complainant has not provided any evidence which suggests that the selectee was preselected. However, even if preselection took place, the Commission has found that preselection, per se, does not establish discrimination when it is based on the qualifications of the selected individual and not discriminatory animus. McAllister v. United States Postal Service, EEOC Request No. 05931038 (July 26, 1994).
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 (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
May 11, 2012
__________________
Date
2
0120121111
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121111
7
0120121111