0120121799
08-22-2012
Ahshu Lin, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Ahshu Lin,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121799
Agency No. 11-67865-00413
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 13, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
On January 24, 2011, Complainant, an applicant, filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (Asian), national origin (Taiwanese), disability (association with disabled person-married to disabled veteran), and age (over 40) when:
she was not given consideration for reinstatement or selected for the position of Sales Associate Cashier, NF-01, with the Marine Corps Exchange, Marine Corps Air Station (MCCS Miramar), Miramar, California.
After the investigation of the complaint, 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 February 13, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its February 13, 2012 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of disability discrimination. However, the Agency found that Complainant established a prima facie case of race, national origin and age discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext for discrimination. Specifically, the Agency found that the two selectees possessed specific customer service skills and had a flexible schedule, whereas Complainant did not.
The selecting official (SO) stated that when he received a list of the candidates from Human Resources, he and the Customer Service Manager (CSM) reviewed the candidates' application packages and decided which candidates to interview. SO stated that CSM "interviewed Complainant first. He gave me the best candidates to give a second interview, including Complainant, in this instance...for this selection, I don't remember how many candidates we interviewed, but it was more than four because it was holiday season and I needed more Cashiers." SO stated that during the interview, Complainant mentioned that she "liked being busy, which is good. [When Complainant stated that] she can't get days off she wants, this was a red flag to me. I cannot give people the schedule they want and get the work done, this is retail. I explained I am looking for a person who is flexible and she just smiled." SO further stated that Complainant's past Army and Air Force Exchange Service (AFFES) experience was the reason she was called in for a second interview.
SO stated that at the end of the interview, he asked Complainant if she had any questions, Complainant asked him "about being off on a Sunday because she needed to take care of personal things. I told her the staff doesn't work all weekends, they take turns taking weekends off. [Complainant] was asking for every Sunday off and I told her we don't do this, I was being very honest." SO stated that he chose two selectees for the subject positions based on their responses to the interview questions, customer service experience and flexibility. SO stated that during the relevant time he was not aware that Complainant's husband was a disabled veteran. Moreover, SO stated that Complainant's race, national origin, disability, and age were not factors in his determination to select the two selectees for the subject positions.
With respect to Complainant's assertion that during the interview, she was treated rudely and asked leading questions, SO denied it. Specifically, SO stated "I do not treat people rudely. I did introduce myself and shook her hand. I did not rudely tell her the interview was over."
The Supervisor of Cashiers (SC) stated that she sat in Complainant's second interview with SO because CSM was off from work. Specifically, SC stated "there is always an observer in the second interview, usually [CSM] sits in, but he was off this day." SC stated that following Complainant's interview, she and SO discussed "the Sunday [Complainant] wanted off, we are open seven days a week and holidays. It was almost Christmas and we needed people to work weekends (Saturdays and Sundays) all the time. I remember [Complainant] asked in the interview if [SO] hired her when could she start; [SO] said we had more people to interview and after all interviews HR would let the candidates know if they were hired." SC further stated that during the interview, Complainant "was not treated rudely or asked leading questions."
CSM stated that during her first interview, Complainant did well . However, Complainant mentioned "there would be some restrictions on the weekends. She said there was something about her son and she might not be able to work weekends....also, I felt she was somewhat abrasive/pushy; she kept asking when she could start and was under the impression she was going to be hired, and mentioned she had AAFES background. I told her I had to go through the process and pointed at the pile of resumes." CSM stated that the reason he graded Complainant "at "four" concerning her availability and during the holidays I had to have Associates seven days a week. I just graded her lower, but sent her through for the second interview."
The Deputy Director (DD) of Human Resources stated that while he had no role in Complainant's selection process, Complainant's husband asked DD to reinstate Complainant to an NAF [non-appropriated fund] Sales Associate Cashier position at MCAS Miramar. Specifically, DD stated that when Complainant's husband "was quoting the NAF Manual, he was misquoting, it saying it was a mandatory requirement of the organization to reinstate his wife. I gave him a copy of the policy stating 'it was not mandatory; the policy says an employee may be reinstated.' It is management's right of who they select and hire. We do not do this for anyone, all candidates for all vacancies, all candidates are treated the same and in a fair and consistent manner." DD further stated that there was no consideration to reinstate Complainant to the subject position because "she had not previously held this position with MCCS."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no discrimination. For instance, Complainant states that the Agency "has erred in their Final Decision dated 13 February 2012 by using 'Pick and Choose' methods. Interpretation of Executive Order # 13473 was incorrect and they failed to analyze all 'Documentary Evidence' relevant to this EEOC case file [emphasis in its original]." Complainant further states that she "never stated in her Job Interview she could not work on weekends." Finally, Complainant argues that a review of the record reflects there is a "collusive conspiracy ring" which consists of DD, SO, and CMS concerning her non-selection.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. 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 (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
August 22, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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