Priscila F.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.Download PDFEqual Employment Opportunity CommissionApr 29, 20160120141483 (E.E.O.C. Apr. 29, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Priscila F.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency. Appeal No. 0120141483 Agency No. APHIS-2013-00212 DECISION The Commission accepts Complainant’s appeal from the February 10, 2014 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency in Raleigh, North Carolina. Complainant had previously volunteered for the Agency. On October 11, 2012, Complainant applied for a Wildlife Specialist (Biological Science Technician) position announced through a widely distributed recruitment announcement. The announcement stated that the position involved working closely with private individuals and government officials in conducting an efficient and effective beaver damage control program with an emphasis on trapping and removing nuisance beavers. The position was to last approximately six months. Complainant was one of seven candidates interviewed by the District Supervisor (S1). S1 asked the candidates the same 14 questions and scored the candidates based on their responses. Complainant received a score of 23.5, which ranked her sixth of the seven candidates. As a result, S1 did not recommend 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120141483 2 Complainant for selection. The selecting official (SO) ultimately selected the Selectee, who was the second-highest ranked candidate (27.5). On February 20, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when, on November 5, 2012, she learned that she was not selected for a Wildlife Specialist (Biological Science Technician) position located in Wake, Johnson, and Harnett counties. At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant requested a FAD. In accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of discrimination and determined that management articulated legitimate, nondiscriminatory reasons for not selecting Complainant. Specifically, the Selectee was recommended and selected because his interview and application demonstrated his substantial experience in wildlife management, including sampling of animals for diseases; responding to cooperators for wildlife damage; assisting with vaccinations; managing livestock damage to predators; managing Canadian geese; collecting data on wildlife hazards; and trapping with the use of cage traps, foothold traps, and snares. In addition, the Selectee had a Bachelor of Science degree in Wildlife Management with a minor in Animal Science, while Complainant had a degree in French with four months of volunteer wildlife management experience. The Agency concluded that Complainant failed to show that her qualifications were demonstrably superior to the Selectee’s or that management’s reasons for not selecting her were pretextual. As a result, the Agency found that Complainant had not been discriminated against as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency based its decision on partial, irrelevant, and corrupt evidence without consideration of the evidence she submitted. Complainant contends that the record evidence supports her claim that she was subjected to discrimination, and that the Agency merely restated management officials’ explanation for not hiring her. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS 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 she was subjected to an adverse employment action under circumstances that would 0120141483 3 support an inference of discrimination. Furnco Constr. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of discrimination, record evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons for not selecting her. More specifically, S1 affirmed that he interviewed seven candidates for the position in November 2012, and that he asked the same 14 questions to allow each candidate to demonstrate their experience. ROI, at 59-60. S1 stated that he scored the applicants’ responses, and subsequently contacted the references of the top three rated candidates. Id. at 60. S1 ranked Complainant sixth of the seven candidates. Id. S1 explained that he recommended the Selectee based on his approximately 21 months of experience with the Agency working full-time as a wildlife specialist. Id. S1 affirmed that the Selectee’s extensive experience in managing wildlife damage included sampling of animals for diseases; responding to cooperators for wildlife damage; assisting with rabies vaccination of wildlife; managing livestock damage to predators; managing Canadian geese; collecting data on wildlife hazards at airports; and trapping with the use of cage traps, foothold traps, and snares. Id. By contrast, S1 noted that Complainant had approximately four months of experience with managing wildlife damage as a volunteer assisting other wildlife specialists. Id. Further, S1 confirmed that the Selectee had more experience working with cooperators managing wildlife damage, had a more extensive background in wildlife management including a degree in Wildlife Sciences and a minor in Animal Science, and he had more training and certifications relevant to the position. Id. Thus, S1 maintained that he recommended the Selectee for selection as he was the most qualified candidate. Id. at 61. Based on S1’s recommendation, SO selected the Selectee. Id. at 55. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish pretext is by showing that his qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may establish pretext as to his non-selection claim. The Commission finds that Complainant failed to show that her qualifications for the position were plainly superior to those of the Selectee. In this case, the Selectee had attributes that justified his selection, and the selection officials involved all affirmed that they believed that the Selectee was better equipped to meet the Agency's needs. In the absence of evidence of 0120141483 4 unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. As Complainant chose to not request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds that the record lacks evidence that the Agency’s selection or the selection process was tainted by discriminatory animus. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that discriminatory animus was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination as alleged CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted 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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 0120141483 5 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 29, 2016 Date Copy with citationCopy as parenthetical citation