0120142142
05-27-2016
Winford M.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food and Nutrition Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Winford M.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food and Nutrition Service),
Agency.
Appeal No. 0120142142
Agency No. FNCS-2013-00702
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 15, 2014 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.
BACKGROUND
During the period at issue, Complainant worked as a Program Specialist, GS-0300-11, at the Agency's Special Nutrition Program, Food and Nutrition Service (FNS) in Chicago, Illinois.
On August 12, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of sex (male) and age (over 40) when:
on June 10, 2013, he was not selected for the GS-301-12 Program Specialist position, advertised under Vacancy Announcement Number 13-FNS-130.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on April 15, 2014, pursuant to 29 C.F.R. � 1614.110(b).
In its April 15, 2014 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of sex and age discrimination. The Agency further found that assuming Complainant established a prima facie case of sex and age discrimination, Agency management articulated legitimate, nondiscriminatory reasons for the non-selection which Complainant failed to show were a pretext.
The instant appeal followed. Complainant, on appeal, argues that the Agency erred finding no discrimination. For instance, Complainant states "if by [selecting official's] quote you believe that a co-worker has a good grasp of the issue and simply consults me for the regulatory citation or the policy memo they might refer to in making their case, that is often far from the truth. Sometimes when they share an email with a question form their state and ask if I know the answer, I will tell them that in the first place the question is not clear, that they need to write back or call the person and get the following points clarified before addressing the issue. That is not technical assistance, that's leadership."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Complainant alleged that he has been Program Specialist for over 20 years. Complainant further alleged that new hires are mostly younger females and that he was not selected for the subject position because he is not a younger female. Moreover, Complainant alleged that two out of the three female panel members have served on previous panels when he had been an applicant but was not selected.
One of the three panel members (Member 1) stated that the panel reviewed the three candidates' application packages and "we all ranked them and sent our recommendation to the selection official. I did rate [Complainant] #2." Member 1 stated that the panel felt that the selectee was ranked at number one based on her extensive experience. Specifically, Member 1 stated that the selectee "had been given an enormous number (both quantity and diversity) of assignments, even before I began to supervise her. She is an excellent technician and gives complex and comprehensive answers to questions. She has a clear understanding of the FNS mission and how her job fits into the FNS mission."
Member 1 stated that during the time she was Complainant's supervisor "I cannot say that he worked harder or was given more work than his co-workers." Member 1 further stated while Complainant has a better understanding of issues "in one element that he has been exposed to and has worked on longer than others assigned that same element. The work was evenly distributed when I supervised him with his co-workers assigned to other elements that they may be more familiar with." Furthermore, Member 1 stated that she did not discriminate against Complainant based on his sex and age.
A second panel member (Member 2) stated that while the panel did not vote for the best qualified candidate "we rated each applicant and gave our notes to the lead supervisor, [Member 1], to discuss with the selecting official, [selecting official]." Member 2 stated "I am from another program, an outside entity to the panel, if you will, I was very impressed with [selectee's] professional responses to the questions we asked. She used her experience to answer the questions and was right on target with her answers."
Member 2 stated that during his interview, Complainant "sometimes goes off on another subject (about himself) and does not really answer the specific question that was asked. [Complainant] will sometimes offer his personal opinion/experience, but not necessarily to the specific KSA's that are needed for a particular position. He is not entirely focused on the answers that we want for a specific position."
The Division Director, also Complainant's second line supervisor, stated that she was the selecting official for the subject position. The selecting official stated that she selected the selectee for the subject position because she was best qualified. For instance, the selecting official stated that the selectee "is reliable and works well with others. She takes the initiative and I can see leadership qualities in her." The selecting official also stated that the selectee demonstrated the skills "in all the important KSA's outlined in the vacancy announcement."
The selecting official stated that she did not select Complainant for the subject position because he did not have leadership qualities. Specifically, the selecting official stated "I do know that [Complainant] has very good technical knowledge but we were looking for someone with leadership qualities for the GS-12 position. We needed someone that is able to lead and that is an area I believe [Complainant] falls short in. The GS-12 position requires a different skill set than his GS-11 position. [Complainant's] past performance would not necessarily be pertinent to skills we were looking for in a GS-12. It helps to have his technical expertise but he also needs good leadership skills."
Moreover, the selecting official stated that Complainant's sex and age were not factors in her decision to select the selectee for the subject position.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements 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 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
May 27, 2016
__________________
Date
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.
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