0120102099
09-21-2010
Willie E. Harris, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, (Employment and Training Administration), Agency.
Willie E. Harris,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
(Employment and Training Administration),
Agency.
Appeal No. 0120102099
Agency No. CRC0911054
DECISION
On April 16, 2010, Complainant filed an appeal from the Agency's March 16, 2010, final decision concerning his 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision (FAD).
ISSUES PRESENTED
(1) Whether the Agency met its burden of articulating a legitimate, nondiscriminatory reason for its actions.
(2) Whether the FAD correctly found that Complainant failed to show that his non-selection was motivated by discrimination or retaliation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-14 Grants Management Specialist with the Employment and Training Administration in Washington, D.C. On April 14, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (black), age (60), and reprisal for engaging in prior protected EEO activity [under ADEA and Title VII] when he applied but was not selected for the GS-1101-15 Supervisory Grants Management Specialist position advertised under Vacancy Announcement Number ETA-08-126MS.
The Agency initially dismissed the complaint on April 28, 2009, but subsequently rescinded its dismissal. The Agency issued its Report of Investigation (ROI) on October 13, 2009. Complainant received the ROI and notice of his right to request a hearing before an EEOC Administrative Judge or to receive a FAD based on the ROI. Complainant simultaneously submitted a request for a hearing and a FAD. By letter dated November 17, 2009, the Agency requested that Complainant clarify whether he was requesting a FAD or a hearing. Additionally, the letter stated that the investigation was deemed incomplete and that further investigation was warranted. The Agency's November 17, 2009 letter was returned as undeliverable, but was hand delivered to Complainant in January 2010. Complainant then requested a FAD on January 15, 2010. The FAD was issued March 16, 2010, pursuant to 29 C.F.R. � 1614.110(b).
Final Agency Decision
The FAD first found that Complainant established a prima facie case of race, color and age discrimination. However, Complainant was not able to establish a prima facie case of sex-based discrimination, as the Selectee was also male. The FAD also found that Complainant did not establish a prima facie case of retaliation as he did not show a causal nexus between his prior EEO activity in 2001 and the challenged action herein.
Next, the FAD found that the Agency articulated a legitimate, nondiscriminatory reason for its selection decision, i.e., that the Selectee was more qualified than Complainant. The Selecting Official (SO) stated1 that he supervised both Complainant and the Selectee, and that the Selectee was a better candidate based on his experience, leadership, abilities and growth potential. SO also stated that the Selectee had a higher qualification score than Complainant. Further, SO did not believe that Complainant had the leadership qualities he believed were necessary to become a supervisor. Additionally, the Selectee's immediate supervisor (SCS) testified that, although not directly involved in the selection process, she supported the selection based upon the Selectee's job performance and skills.
The FAD noted that in an attempt to establish pretext, Complainant stated that he had more years of grants experience. The FAD found that even if Complainant did have more experience with the Agency, having more years of experience than the selectee did not necessarily make him more qualified to meet the needs of the Agency. The FAD also noted that consideration of "growth potential" in this case "was not intrinsically linked to age, but reflected the SO's awareness of the Selectee's qualifications for the position."
The FAD further found that SO explained how the Selectee was a better candidate than Complainant, and that Complainant's experience and knowledge in comparison did not make him the best candidate. The FAD found that this was supported by SCS who vouched for the Selectee's qualifications. According to the FAD, the record contained the position description and a comparison of Complainant and the Selectee, and that that Complainant did not prove that the Agency's stated reason was pretextual. Therefore, the Agency found that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that in recent years, the position at issue has been advertised and filled three (3) times through the merit staff process, and once through restructuring. He notes that on all four (4) occasions, he was deemed qualified, having made all certification lists. He further notes that on each occasion he was interviewed as one of the highly qualified candidates for the position. However, all of the selectees have been Caucasian males or females, with one of the females reassigned to the position via the restructuring.
Complainant asserts that throughout the entire Office of Grant and Contract Management, minorities are the predominant component of the workforce. He states that historically, the Agency was the defendant in a class action suit by its minority employees, concerning its promotional practices. Complainant believes he is similarly situated to the Selectee. Complainant states that he compares favorably with the Selectee, in terms of total experience, as well as, relevant experience in the position. Furthermore, Complainant has served as an unlimited grant officer for eight (8) years, compared to the three (3) years of unlimited grant experience possessed by the Selectee.
Complainant maintains that the following factors are indicative of discrimination: he was, and had been certified in the past, for the position, and he was performing at a high level, and had significantly more total and relevant experience. He also states that, just as significantly, is the fact that the SO refused to submit an affidavit for the investigation which he maintains is also probative of discrimination. These facts, coupled with the trend for the past ten (10) years of hiring Caucasians for the position suggest strongly that impermissible factors were more likely than not a factor in the selection process.
Complainant also asserts that he has been involuntarily reassigned in reprisal for his EEO activity, and that he has been ostracized for several years from his peers and management.2
In response, the Agency asserts that the Commission should affirm the FAD because it is fully supported by the factual record and the applicable law.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 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 the 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").
Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. � 623(a)(1). When a Complainant alleges that he or she has been disparately treated by the employing Agency as a result of unlawful age discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [Complainant's] age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id.
The allocation of burdens and order of presentation of proof in a Title VII or ADEA case alleging disparate treatment discrimination is a three step procedure: complainant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its challenged action; and complainant must then prove, by a preponderance of the evidence, that the legitimate reason offered by the employer was not its true reason, but was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, there is no dispute that Complainant established a prima facie case of discrimination on the bases of race, color and age, because the individual selected for the position Complainant sought is a younger, white male who is not in Complainant's protected groups. We do not find that Complainant established a prima facie case discrimination based on retaliation, because of the approximate nine years between his prior EEO activity and the non-selection at issue here. Like the Agency, we find that Complainant failed to establish a prima facie case of discrimination based on sex since both he and the Selectee are males.
The record indicates that SO did not provide a sworn affidavit, unlike the Agency, we will not consider the SO's unsworn statements to the EEO Counselor as evidence in this case. Although the record does not indicate when the SO retired, we are concerned that the Investigator waited approximately five months after Complainant filed his formal complaint before contacting the SO seeking an affidavit on September 25, 2009 . Given that the ROI was issued on October 13, 2009, we find it reasonable to conclude that the Agency did not act expeditiously.
Accordingly, we turn to considering whether the Agency has met its burden of articulating a legitimate, nondiscriminatory reason for not selecting Complainant. Based on the totality of the evidence, we find that the Agency has not sufficiently articulated a legitimate, nondiscriminatory reason for selecting the Selectee and not Complainant.
The Administrator, Office of Financial and Administrative Management, stated that she was the SO's second-level supervisor at the relevant time. She stated that SO advised her that he intended to select the Selectee for the Supervisory Grants Management Specialist position, as he was the best candidate for the job based on his grants management and contract management experience. She also stated that SO briefed her on his selection and requested her concurrence, and that she gave her concurrence for the selection of the Selectee.
The Deputy Administrator for the Office of Financial and Administrative Management testified that she was SO's direct supervisor, and that SO informed her that the selectee had scored the highest on the list of certified candidates. SO thought the scoring sheet correctly reflected the best technically qualified person for the job. She further stated that the Selectee "was selected because of his outstanding technical skills."
The Deputy further stated the following:
I saw no reason to object to SO's decision based on the follow reasons: I directly supervised [the Selectee] for the period of November 2005 - October 2007. During that time period, I observed SO as a supervisor of a discretionary grant unit. Under [the Selectee's] supervision, this unit conducted numerous complex grant competitions awarding millions of dollars in grant awards. The grant competitions [the Selectee] oversaw met stringent timeframes, were well documented and were in compliance with all Federal regulations. In order to complete these competitions, [the Selectee] had to transform a team that he inherited - and [the Selectee] did just that. Through on-the-job training, he raised the performance level of individuals on his staff and created a top performing team, in addition, [the Selectee] encouraged technical training and nurtured career growth for his staff. As a result, four of his staff have applied for and received promotions. During this time period, ETA also migrated from a paper production of awarding grants to an electronic 'e-grants' system. [The Selectee] was at the forefront in testing, providing feedback and improving the operation of this system. [The Selectee] also modernized the charts and graphs displaying applicants, selections and areas served through the use of Excel and Map Quest. [The Selectee's] computer skills are outstanding. I observed first hand outstanding leadership, communications and problem solving. [The Selectee exercised excellent judgment regarding technical issues and developed the strongest grant unit in the division. [The Selectee] delivered outstanding customer service to his clients and was 100% accountable to complete the work at hand accurately and on time.
We find that the Agency failed to meet its burden of production when it offered very little by way of a specific explanation for why Complainant was not selected. Although the Agency's witnesses were told or believed that the Selectee was the best technically qualified person for the job, there is no reliable explanation why Complainant was not selected. Both the Administrator and the Deputy Administrator specifically stated that they were not involved in the selection decision, and offered no documentation in support of their opinions.
The Commission is cognizant that the Agency's burden to articulate a legitimate nondiscriminatory reason for its actions is not an onerous one. Nevertheless, the Commission finds that the Agency has failed to set forth, with sufficient clarity, reasons for Complainant's non-selection such that he has been given a full and fair opportunity to demonstrate that those reasons are pretext. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981); see Parker v. U.S. Postal Serv., EEOC Request No. 05900110 (April 30, 1990); Lorenzo v. Dep't of Defense, EEOC Request No. 05950931 (November 6, 1997). The consequence of the Agency's failure to meet its burden of production under McDonnell Douglas is that Complainant, having established a prima facie case, prevails without having to make any demonstration of pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency's final order and direct the Agency to comply with the Order below.
ORDER
The Agency, within 90 calendar days of this decision becoming final, shall take the following remedial actions:
1. Place Complainant in a GS-1101-15 Supervisory Grants Management Specialist position, retroactive to February 2006;
2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. The back pay shall include salary increases based on satisfactory work performance. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision;"
3. The issue of compensatory damages is REMANDED to the Agency. On remand, the Agency shall conduct a supplemental investigation on compensatory damages, including providing the complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable the EEOC determining the appropriate amount of damages within 150 calendar days after this decision becomes final.
4. Provide four hours of training to the facility's management officials, with special emphasis on the ADEA and Title VII, and the requirement to participate in the EEO process.
5. The Agency shall consider taking appropriate disciplinary action against the responsible Agency officials still employed by the Agency. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons(s) for its decision not to impose discipline. If any of the responsible Agency officials have left the Agency's employment, the Agency shall furnish documentation of their departure date(s). The Commission does not consider training to be a disciplinary action.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include documentation indicating that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at the Employment and Training Administration in Washington, D.C., copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)). she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
_____9/21/10_____________
Date
1 The Investigative Summary indicates that, on October 7, 2009, the SO, who had retired at the time, declined to submit an affidavit, after being asked to do so by the Investigator on September 25, 2009. However, in March 2009, he had previously provided responses to the allegations to the EEO Counselor, and the FAD includes these responses in its analysis. According to the Investigator, SO, when asked to provide an affidavit, indicated that "the record speaks for itself."
2 These claims are not currently before the Commission. Complainant is advised that he must bring new claims of discrimination or retaliation to the attention of an EEO counselor.
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0120102099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102099