0520110043
01-18-2012
Luis C. Sotomayor, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.
Luis C. Sotomayor,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Request No. 0520110043
Appeal No. 0120102342
Agency No. APHIS-2009-00107
DECISION
Complainant timely requested reconsideration of the decision in Luis
C. Sotomayor v. Department of Agriculture, EEOC Appeal No. 0120102342
(September 16, 2010). 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). For the following reasons, the Commission
reopens the previous decision on its own motion, VACATES the decision
in EEOC Appeal No. 0120102342 affirming the Agency’s dismissal of
Complainant’s complaint, and AFFIRMS the Agency’s final decision
finding no discrimination.1
ISSUES PRESENTED
The issues presented are: (1) whether Complainant’s request met the
criteria for reconsideration; (2) whether the Agency properly dismissed
Complainant’s complaint for untimely filing of the formal complaint;
and (3) whether Complainant established that the Agency discriminated
against him on the basis of disability (general anxiety disorder) in
connection with a non-selection.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Plant Protection and Quarantine (PPQ) Technician, GS-0421-05,
at the Agency’s facility in Mayaguez, Puerto Rico.
On February 19, 2009, after completion of the EEO counseling process,
the Agency issued Complainant a Notice of Right to File (NRF). On March
9, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of disability (general anxiety
disorder) when, on November 3, 2008, he was not selected for the
Biological Laboratory Technician position, GS-0404A-06/07, advertised
under vacancy announcement number 24PQ-2008-0451. At the conclusion of
the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing
before an EEOC Administrative Judge. In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. §
1614.110(b).
The final decision dismissed Complainant’s complaint pursuant to
29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal
complaint. Specifically, the Agency found that Complainant’s March
9, 2009 formal complaint was untimely filed based on his February 19,
2009 receipt of the NRF.
Additionally, the final decision analyzed Complainant’s complaint
on the merits and concluded that he failed to prove that the Agency
subjected him to discrimination as alleged. First, the Agency found
that management articulated legitimate, nondiscriminatory reasons for
its actions; namely, Complainant applied for and was listed only on
the GS-06 certificate of eligibles issued by Human Resources, but the
Selecting Official (SO)2 chose a candidate from the GS-07 certificate
because he wanted a more experienced candidate who could “hit the
ground running” and eliminate the extensive case backlog.
Second, the Agency found that Complainant failed to show that
management’s reasons were a pretext for disability discrimination.
The Agency found that Complainant did not demonstrate that his
qualifications were observably superior to those of the Selectee.
The Agency noted that the Selectee’s combination of experience and
education placed her at the GS-07 level, the Selectee had undergraduate
and graduate degrees in Horticulture, and her application indicated that
she was “highly skilled” in most of the desired job categories.
Although Complainant asserted that the Selectee was pre-selected
because SO knew her stepfather, the Agency found that Complainant’s
assertions of possible favoritism did not support any concrete evidence
of disability-related animus connected to his non-selection.
On appeal, Complainant stated, “This is the culmination of a
track of discrimination against me denying training opportunities
and promotions.” Complainant submitted information about training
that management allegedly denied him, but gave to other employees.
Complainant did not address the Agency’s dismissal of his complaint.
The previous decision affirmed the Agency’s dismissal of Complainant’s
complaint, finding that Complainant did not offer adequate justification
to warrant an extension of the time limit for filing the formal complaint.
Specifically, the previous decision noted that Complainant did not deny
receiving the NRF on February 19, 2009, the date that it was issued.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant argued for the first time
that he received the NRF on February 23, 2009, not February 19, 2009.
Complainant provided a U.S. Postal Service Track & Confirm email dated
September 24, 2010, which indicated that Certified Mail matching the label
number of the NRF was delivered to his zip code on February 23, 2009.
Complainant explained that he did not address the timeliness issue on
appeal because, at that time, he did not have an attorney who could call
to his attention those legal issues.
The Agency did not submit a brief or statement in response to
Complainant’s request.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant’s request for reconsideration
fails to show that our previous decision involved a clearly erroneous
interpretation of material fact or law, or that it would have a
substantial impact on the policies, practices, or operations of
the Agency. We note that Complainant raised for the first time in
his request for reconsideration his claim that he received the NRF on
February 23, 2009 and not February 19, 2009. The Commission’s scope
of review on a request for reconsideration is narrow and a request for
reconsideration is not a second appeal to the Commission. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at Ch. 9, § VII.A. (Nov. 9, 1999).
Nevertheless, upon our own motion and in the interest of fairness, we
reopen the previous decision and find, based on the record as it currently
stands, that Complainant’s March 9, 2009 filing of his formal complaint
should be deemed timely. EEOC Regulation 29 C.F.R. § 1614.106(b)
provides that a complaint must be filed within 15 calendar days of
receipt of the notice of the right to do so. A closer examination of
the NRF should have revealed that it was mailed from Riverdale, Maryland
on February 19, 2009; and therefore could not have been received by
Complainant in Cabo Rojo, Puerto Rico on the very same day. In the
absence of documentation from the Agency conclusively indicating when
the NFR was received by Complainant, we will accept his assertion that
he received the NRF on February 23, 2009. Based on Complainant’s
February 23, 2009 receipt of the NRF, the deadline for filing the formal
complaint was March 10, 2009. Accordingly, we VACATE our previous
decision affirming the Agency’s dismissal of Complainant’s complaint.
The Commission will now address the merits of Complainant’s complaint.
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEO MD-110,
at Ch. 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,”
and that EEOC “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”).
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804
n.14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
519 (1993). At all times, Complainant retains the burden of persuasion,
and it is his obligation to show by a preponderance of the evidence that
the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the bases of disability, we find that the Agency
articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, SO attested that he decided to select only from the GS-7
certificate because, due to a significant backlog of over 100 cases,
he was looking for the candidate with the most expertise. In addition,
SO attested that he needed a candidate who could “hit the ground
running” and not require training. Further, SO attested that he did
not determine which candidates appeared on the different certificates, but
noted that Human Resources would have taken into account the candidates’
experience and education when issuing the certificates.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason was a pretext
for disability discrimination. In his affidavit, Complainant attested
that the only reason SO arbitrarily selected a candidate from the GS-07
certificate was to avoid selecting him because of his disability, even
though he was ranked first on the GS-06 certificate and had all the
necessary knowledge and experience. Specifically, Complainant attested
that SO knew he had the expertise to handle the backlogged cases without
the need for training because he was in charge of handling them from 2004
to 2007. In addition, Complainant attested that the Selectee had to be
trained in order to work on the backlogged cases. Finally, according
to the EEO Counselor’s Report, Complainant believed that the Selectee
was pre-selected for the position because she was the stepdaughter of
a good friend of SO’s.
Upon review of the record, we find that Complainant failed to show that
the Agency’s reason was a pretext for disability discrimination.
Beyond his bare assertions, Complainant has not produced evidence to
support his claims that SO selected a candidate from the GS-07 certificate
in order to discriminate against him on the basis of disability or that
the Selectee required training for the position.
In non-selection cases, a complainant may establish pretext by showing
that his qualifications are “plainly superior” to those of the
selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
We find that Complainant has failed to make this showing. According to
the vacancy announcement, the incumbent “performs a variety of duties
in a Plant Inspection Station/laboratory environment in support of the
PPQ Identification specialists (Identifiers) and assists them with
special projects in the disciplines of Entomology, Plant Pathology
and Botany.” Although Complainant had approximately six years of
experience as a GS-05 PPQ Technician compared to the Selectee’s one
year of experience as a GS-04 PPQ Technician, the record shows that the
Selectee had additional experiential and educational qualifications that
Complainant did not have. Specifically, our review of the Selectee’s
application reflects that she also had the following: (1) two years of
experience as a Laboratory Instructor for a plant-related undergraduate
course; (2) a Bachelor of Science in Horticulture; (3) a Master’s
degree in Horticulture; (4) coursework in Agricultural Entomology,
Botany, Biology, Chemistry, Genetics, Microbiology, and Pesticides; and
(5) a published thesis related to her Master’s degree in Horticulture.
In contrast, Complainant did not have other relevant work experience,
had a Bachelor’s degree in Business Administration with a minor in
Personnel Management, and did not have any graduate education.
Complainant also argued that the Selectee was pre-selected for the
position because she was the stepdaughter of a good friend of SO’s.
While we are not convinced that pre-selection occurred, we note that we
have held that pre-selection, per se, does not establish discrimination
when it is based on the qualifications of the selected individual and
not on some protected basis. See McAllister v. U.S. Postal Serv.,
EEOC Request No. 05931038 (July 28, 1994). Because we find that
Complainant has failed to offer probative evidence demonstrating that
the Agency’s selection decision was based on a prohibited basis
under the Rehabilitation Act, we find that, even if the Selectee was
pre-selected, no discrimination occurred. Ultimately, the Agency has
broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek
v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
Accordingly, we find that Complainant failed to show that the Agency’s
reason for his non-selection was a pretext for disability discrimination.3
CONCLUSION
After a review of Complainant’s request for reconsideration, the
previous decision, and the entire record, the Commission finds that
Complainant’s 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, however, has decided to reconsider the previous
decision on its own motion. The decision of the Commission in EEOC Appeal
No. 0120102342 is VACATED. The Agency’s final decision, with respect to
its finding of no discrimination, is AFFIRMED. There is no further right
of administrative appeal from that portion of our decision pertaining
to the timeliness of Complainant’s formal EEO complaint filing.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (revised)
With regard to that portion of our decision pertaining to the Agency’s
determination that it did not discriminate against Complainant on
the basis of disability (general anxiety disorder) in connection
with his non-selection for the Biological Laboratory Technician
position, GS-0404A-06/07, advertised under vacancy announcement number
24PQ-2008-0451, 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 (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
___1/18/12_______________
Date
1 The final decision both procedurally dismissed Complainant’s complaint
and addressed it on the merits.
2 SO was the Second Level Supervisor of Complainant and the Selectee.
3 To the extent that Complainant believes he has been subjected to new
incidents of discrimination, he is advised that he may seek EEO counseling
concerning such claims.
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0520110043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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