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
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0520110653
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110653