Jamie L. Paulin, Complainant,v.Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionJan 13, 2012
0520110653 (E.E.O.C. Jan. 13, 2012)

0520110653

01-13-2012

Jamie L. Paulin, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.




Jamie L. Paulin,

Complainant,

v.

Lisa P. Jackson,

Administrator,

Environmental Protection Agency,

Agency.

Request No. 0520110653

Appeal No. 0120112036

Agency No. 20090034R05

DENIAL

Complainant timely requested reconsideration of the decision in Jamie

L. Paulin v. Environmental Protection Agency, EEOC Appeal No. 0120112036

(August 17, 2011). EEOC Regulations provide that the Commission may,

in its discretion, grant a request to reconsider any previous Commission

decision where the requesting party demonstrates 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. See 29 C.F.R. §

1614.405(b).

BACKGROUND

In the appellate decision, Complainant, a GS-12 Chemist, alleged that

the Agency discriminated against her on the basis of sex (female) when:

(1) on July 15, 2008, she was notified that management had not considered

her for the position of Environmental Protection Specialist, GS-13; and

(2) she was not selected for the position of Environmental Scientist,

GS-13. Complainant applied for the position of Environmental Scientist,

GS-13, advertised under Announcement No. Reg-5-MP-2008-0049. She claimed

that she was not considered for a second GS-13 merit promotion vacancy

position, Environmental Protection Specialist (EPS), advertised under

Announcement No. Reg-5-MP-2008-0052 because she did not apply for

it. Complainant claimed that she did not submit an application for

the position of EPS, GS-13, because she and the other applicants had

been falsely advised by the selecting official (SO) that they would

be considered for this position as long as they had applied for the

position of Environmental Scientist as the two positions were linked.

The policy however was changed during the selection process and

Complainant therefore was not considered for a position for which she

thought she would be considered. The Agency issued a final decision

which found that Complainant had not been subjected to discrimination.

The Commission affirmed the Agency’s decision finding that Complainant

provided no persuasive arguments indicating any improprieties in the

Agency’s findings.

REQUEST FOR RECONSIDERATION

In Complainant’s request for reconsideration she maintains that the

Commission failed to consider evidence showing that she was misled.

She maintains that personnel was told that the selecting officials

intent was to fill the two positions from the entire pool of candidates,

and therefore if a candidate applied for one position they would be

considered for the second position as well. When this was not done,

Complainant asserts that the Agency improperly misled applicants.

Complainant also maintains that the Agency failed to rebut her prima

facie case of discrimination as neither the FAD nor the Commission’s

decision specifically identify management’s articulated legitimate,

nondiscriminatory reasons for its actions.

Further, Complainant maintains that with respect to claim 2, the Agency

ignored federal policies and procedures required in the hiring process

and used false statements and justifications in making their selection.

She maintains that the Agency failed to establish an “honest

evaluation” of relevant qualifications and intentionally sought to

misrepresent the facts. Specifically, she maintains that he Agency

failed to provide rankings and destroyed evidence. Complainant asserts

that such missing evidence should be viewed in her favor.

ANALYSIS AND FINDINGS

After reviewing the previous decision and the entire record, the

Commission finds that the request fails to meet the criteria of 29

C.F.R. § 1614.405(b), and it is the decision of the Commission to

deny the request. The Commission finds that Complainant failed to

establish that the appellate decision involved a clearly erroneous

interpretation of material fact or law, or that the appellate decision

will have a substantial impact on the policies, practices, or operations

of the Agency. The Commission finds that even if we assume arguendo that

Complainant established a prima facie case of sex discrimination, the

Agency articulated legitimate, nondiscriminatory reasons for its actions,

namely, that with respect to claim 1, there was a change in policy and

it was decided that the positions would be considered separately. And,

while as Complainant suggests this message may not have been adequately

communicated to the applicants, Complainant has failed to show that

the Agency’s change in policy was discriminatory as it applied to and

affected all of the applicants and was not specific to Complainant or

members of her protected groups.

With respect to claim 2, the Commission finds that the evidence shows

that Complainant’s qualifications were evaluated against those of

the selectee and reasons were given for his selection. Specifically,

the selecting official (SO) stated that the selectee was chosen for the

subject position because the panel was unanimous that he was the best

qualified candidate. The SO stated that the selection was based on the

qualifications of the candidates and the required knowledge, skills and

abilities, which flowed from the position description. The SO stated

that while Complainant and the selectee both have science degrees and

were hired as inspectors by the Agency, the selectee’s “combination

of strong leadership skills, supervisory experience, command of RCRA

compliance monitoring and enforcement, and multi-media work experience

placed him above Complainant.” Further, one of the three panelists

involved in with the selection process (S1) indicated that the candidates

were not rated and ranked but notes were taken. S1 explained that

following the interviews, the panel “collaboratively discussed the

qualifications of the candidates, including their education and work

experience. The panel also discussed the strengths and weaknesses of

the candidates.” Sl stated that the panel unanimously recommended

the selectee for the subject position because it was felt that he was

best qualified for the position. Sl stated that the second recommended

candidate was also a male and Complainant was the third recommended

candidate. Based on the record, the Commission finds that Complainant

has not shown that the disparities in qualifications between her and

the selectee are “of such weight and significance that no reasonable

person, in the exercise of impartial judgment, could have chosen the

[selectee] over [her] for the job in question.” Ash v. Tyson Foods,

Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42,608 (11th Cir. 2006),

cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007). Accordingly, the decision

in EEOC Appeal No. 0120112036 remains the Commission’s decision.

There is no further right of administrative appeal on the decision of

the Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission’s decision. 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.

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

___1/13/12_______________

Date

2

0520110653

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0520110653