0120112016
06-20-2012
Ralph R. Winstead, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
Ralph R. Winstead,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 0120112016
Hearing No. 551-2010-00185X
Agency No. FWS-09-0354
DECISION
On February 24, 2011, Complainant filed an appeal from the Agency's January 24, 2011, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Animal Caretaker, WG-5048-05, at the Agency's Region 8 Fisheries Program, Coleman National Fish Hatchery Complex in Anderson, California. In 2009 and 2010, Complainant sought a promotion to three different WG-4749-10 Maintenance Mechanic vacancies at the Coleman Fish Hatchery complex.
Complainant filed an EEO complaint dated August 28, 2009, which was amended, alleging that the Agency discriminated against him on the basis of disability (knee impairments) when:
1. On June 21, 2009, Complainant was not selected for a WG-10 Maintenance Mechanic vacancy advertised under Vacancy Announcement Numbers FS-232I27-SW09 and R8-09-238072-ES;
2. On September 25, 2009, Complainant was not selected for a WG-10 Maintenance Mechanic vacancy announced under Vacancy Announcement Numbers R8-09-268872 and R8-09-263588-ES; and
3. Complainant was not selected for a WG-10 Maintenance Mechanic vacancy announced under Vacancy Announcement Number R8-10-341038-ES.1
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 (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on January 12, 2011. The Agency subsequently issued a final order dated January 24, 2011, fully implementing the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant argues that the incorrect standard was applied in requiring him to establish pretext through his own superior qualifications rather that his qualifications generally as a 30% disabled veteran. He also claims the Agency failed to follow proper OPM procedures for passing over a 30% or more disabled veteran. Finally, Complainant argues that the AJ failed to consider evidence in the record that contradicts statements by the Selecting Official regarding the relative qualifications of candidates for selection in issue (2).
ANALYSIS AND FINDINGS
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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, � VI.A. (Nov. 9, 1999) (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").
At the outset, we note Complainant does not challenge on appeal the Agency's dismissal of his claims surrounding his 2004 and 2005 non-selections pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Nevertheless, we agree with the Agency that dismissal of the 2004 and 2005 non-selections, which were discrete incidents of alleged discrimination, was proper.
Upon review, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing. Moreover, we find the record in the present case was fully developed. Under these circumstances, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. 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. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
In the present case, the Agency has articulated legitimate, non-discriminatory reason for its actions.2 With regard to issue (1), the record reveals that in February 2009, Complainant applied for the Maintenance Mechanic vacancy advertised under Vacancy Announcement Numbers FS-232127-SW09 (OPM Vacancy Announcement) and R8-09-238072-ES (Merit Promotion Announcement). In his affidavit, the Assistant Hatchery Manager (Selecting Official) stated that based on the previous five years experience, there was a high priority in office to fill the need for a skilled metal fabricator/welder with design ability.3 The Selecting Official stated that other priorities included experience maintaining vehicles such as heavy trucks, forklifts, and riding lawn mowers. He noted that experience maintaining and repairing mechanical and control aspects of generator sets, hydraulic and pneumatic equipment, and experience operating equipment such as a backhoe and front loader were also important. The Selecting Official stated that less important were experience in the Building Trades and with concrete as there is less demand for these skills at the level of Station Maintenance. The Selecting Official explained that he chose Selectee X for the vacancy because he felt that Selectee X was the best-qualified applicant. Specifically, the Selecting Official stated that Selectee X had superior qualifications in the areas of metal fabrication and welding; mechanical maintenance and repair of vehicles, internal combustion engines, and hydraulic, pneumatic, and electrical systems; and, to a lesser extent, building and concrete skills.
Complainant failed to demonstrate that his qualifications in the relevant skill areas were superior to those of Selectee X. We note the record reveals that at the time of his selection for the WG-4749-10 Maintenance Mechanic position, Selectee X held a WG-4749-09 Maintenance Manager position whereas Complainant held a WG-048-05 Animal Caretaker position. Despite Complainant's argument that the position description for the Maintenance Mechanic position did not include any mention of metal fabrication, welding, or electrician duties, we note that in the position description under number five of major duties it listed welding and sheet metal fabrication using metals such as aluminum, steel, stainless steel, or copper. Also, number seven of the major duties listed maintains and repairs electrical systems such as lighting and power fixtures, wiring, power sources, fire or water alarm systems, and emergency power systems and other electrically powered systems. While Complainant asserted that management changed the WG-4749-10 Maintenance Mechanic position description in October 2008 "in order to manipulate the hiring authorities for their own purpose and not for any station needs," we note he failed to present any evidence to support this assertion.
Additionally, we reject Complainant's contention that the Agency used the incorrect standard in requiring him to establish pretext through his own superior qualifications rather that his qualifications generally as a 30% disabled veteran. Moreover, with regard to his claim that the Agency failed to follow proper OPM procedures for passing over a 30% or more disabled veteran, we find no evidence to support such a contention. Furthermore, we note that enforcement of OPM procedures is outside the Commission's jurisdiction. Upon review, we find Complainant failed to show the Agency's actions with respect to issue (1) were a pretext for discrimination based on his claimed disability.
With regard to issue (2), the record reveals that the WG-4749-09 Maintenance Manager position was posted in September 2009, under Vacancy Announcement Numbers R8-09-268872 (OPM Vacancy Announcement) and R8-09-263588-ES (Merit Promotion Announcement). In his affidavit, the Selecting Official stated that he considered the candidates' respective depth of experience in the maintenance areas having the greatest frequency of occurrence at the facility, such as: maintenance; problem diagnosis; repair of standby generator sets; and all aspects of heavy, freight-type trucks. The Selecting Official stated other important factors were the ability to perform metal fabrication and welding; the maintenance and repair of hydraulic and pneumatic equipment, electrical systems, and diesel-powered pumps; and the ability to operate heavy equipment such as backhoe and front loader; and whether the selectee had or could obtain a CDL. Moreover, the Selecting Official stated that some experience in building trade skills such as concrete work and building structure maintenance would help, but were prioritized at a lower level.
The Selecting Official explained that Selectee Y was chosen due to his superior skills and qualifications. The Agency noted Selectee Y was hired from the OPM/DEU certificate as a preference eligible. The Agency stated the best candidate was chosen while applying the rule of three and not skipping a preference eligible veteran for a non-preference eligible. In his affidavit, the Selecting Official noted that Coleman Hatchery has four diesel powered emergency standby generators which provide power critical to operating the water disinfection facility and run water supply pumps during power outages. The Selecting Official noted that in the event of a power outage, any developing problem with these generator units or the electrical switching units which makes their power available to the hatchery is of the highest priority. The Selecting Official noted that Selectee Y had 20 years military experience as a maintenance mechanic, and had maintained diesel-powered generators of various sizes, whereas Complainant did not have the same depth of experience in these relevant areas. With regard to the evidence (a statement by a coworker) that Complainant references on appeal, we find that even if this statement is correct, there is no indication in the statement that the selection decision was motivated by disability discrimination. Upon review, we find Complainant failed to show the Agency's actions with respect to issue (2) were a pretext for discrimination.
With regard to issue (3), the record reveals that Complainant applied for the WG-10 Maintenance Mechanic vacancy announced under Vacancy Announcement Number R8-10-341038-ES. The Selecting Official stated he chose Selectee Z to non-competitively fill this position in April 2010, because Selectee Z previously had successfully served in this position for a five-year period of time, and thereafter sought an interagency transfer back into the same job.
The Agency explained that as required per the Agency's Human Resources policy, prior to the execution of the Inter Agency transfer, a Career Transition Assistance Plan (CTAP) vacancy announcement was issued to allow any displaced former Federal employees within the local commuting area opportunity to compete for the position. The Project Leader for the Coleman National Fish Hatchery Complex (Approving Official) noted that as Complainant was not a displaced former employee, he was not eligible to apply under the CTAP vacancy announcement. The Agency noted that no qualified displaced former federal employees were identified as a result of the CTTAP vacancy announcement and the Inter Agency Transfer went forward.
The Selecting Official noted that he had supervised Selectee Z during his previous employment with the Agency. The Selecting Official stated that during his five years of previous employment, Selectee Z was called upon regularly as the lead fabricator and welder to take on larger more complex fabrication tasks. The Selecting Official noted that Selectee Z also demonstrated a high level of expertise in the areas of mechanical work on vehicles, hydraulic systems, diesel powered electric generator sets, pumps and motors, and backhoe and front loader operation. The Selecting Official also stated that on several occasions, Selectee Z demonstrated experience in building maintenance and concrete placement. The Selecting Official noted that he rated Selectee Z at the Exceptional performance level on four of the five annual Performance Evaluations that he filled out on Selectee Z during his prior employment at the Agency. Finally, the Selecting Official noted that Selectee Z committed to residing in on-station quarters so as to be available to answer low water and loss of electric power alarms, and alarms resulting from problems with the ozone water treatment system after hours. Complainant failed to show that the Agency's actions with respect to issue (3) were a pretext for discrimination.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
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
June 20, 2012
__________________
Date
1 Complainant's complaint also included his non-selection for Maintenance Worker positions in 2004 and 2005. The Agency subsequently dismissed the 2004 and 2005 non-selections on the grounds of untimely EEO Counselor contact.
2 For purposes of this decision, we assume that Complainant is a qualified individual with a disability.
3 The same Selecting Official was involved in all three non-selections in this case.
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01-2011-2016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112016