0120112278
01-20-2012
Anthony Reyes, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency.
Anthony Reyes,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120112278
Agency No. NPS-10-0241
DECISION
On March 21, 2011, Complainant filed a timely appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from a final
Agency decision (FAD) dated February 16, 2011, 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 accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against
based on his race (Hispanic) and age (56) when on November 2, 2009,
he was notified that he was not selected for the position of Service
Human Resources Office (SHRO) (Lead), Vacancy Announcement PWRO-2009-119.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Human Resource Officer at the Agency’s National Park Service,
Lake Mead National Recreational Area in Boulder City, Nevada. He also
serviced another park and another organization, and served as the Acting
Lead SHRO which encompassed 10 park units.
On March 16, 2010, Complainant filed an EEO complaint alleging the
above issue. Following an investigation, he was notified of his
right to request a hearing before an EEOC Administrative Judge (AJ),
and requested a FAD based on the record. In its FAD, the Agency found
no discrimination.
The Lead SHRO was advertised to supervise the human resource function
for the Mediterranean and Mojave Network of 10 parks. Each park has a
Park Superintendent, and the 10 Park Superintendents comprise the Board
of Directors. The Board delegated to Park Superintendents 1 and 2 and
the Regional Human Resources Program Manager (now retired), the task of
comprising a panel to recruit and make a recommendation to the Board to
fill the job.
Twelve candidates made certificates as eligible, and based on a review
of their applications, the panel narrowed the candidates down to five.
After checking references one more candidate was dropped. Complainant was
among the remaining four. After conducting telephone interviews of them,
the panel narrowed the candidates to two, the selectee (Caucasian, age
46) and another, not Complainant. After conducting second interviews
with the remaining two candidates, the panel unanimously recommended
the selectee to the Board, which in turn unanimously concurred in and/or
decided to hire the selectee.
Park Superintendent 1, who signed off on the choice of the selectee
on an internal hiring paper as the selecting official, affirmed that
Complainant did not make it to the second interview because the panel
believed he was less qualified than the other two candidates. He stated
that Complainant was the lead SHRO position for less than a year, and
the two others were in jobs like the position in question in the military
overseeing similar functions for quite a while. He stated the selectee
had more relevant experience at a higher grade and much more variety of
experience in human resources. In an email to Complainant soon after the
selection decision explaining the decision, Park Superintendent 1 wrote
that the selectee had several years of experience successfully operating
as the lead to a human resources office that was nearly identical to
the SHRO lead role – geographically dispersed human resources staff
serving multiple managers. He wrote that the selectee had experience in
leading change and specifically highlighted some of the steps he took in
his current organization to help staff cope with change and work together
as a team. He also wrote that the selectee had many years of experience
developing and operating tracking systems for improved service delivery,
a highly valued asset.
Park Superintendent 2 stated that the panel recommended the selectee
to the Board because he stood out in terms of his experience managing a
similar type of virtually dispersed arrangement – managing and leading
a similar network; he had substantial and positive experience and very
solid answers to the interview questions; a clearly articulated vision
for how separate and dispersed offices could work together in a virtual
alignment or configuration; a strong vision for customer service in such
an arrangement where you have customers dispersed; a system and vision
for information data processing; very strong verbal communication skills;
reference check and past experience with supervisors were all positive;
application materials were solid; and a demonstrated ability to do
the job. Park Superintendent 2 stated the principle reason Complainant
did not make it to the second round of interviews was he had limited
experience managing a virtual organization of human resources offices.
Complainant stated he acted as lead SHRO part time for about a year.
In its FAD, the Agency, referring to Park Superintendent 1 and
2’s explanations, found that the Agency provided legitimate,
non-discriminatory reasons for choosing the selectee. The Agency found
that Complainant failed to prove the Agency’s reasons were pretext to
mask discrimination.
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 he or she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco
Constr. Co. 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 804 n. 14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Tex. 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 Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant made out a prima facie case of race and age discrimination.
He applied for the job in question, was qualified, and the Agency in
a competitive process chose a selectee who was outside Complainant’s
protected group of Hispanic and significantly younger than Complainant.
Complainant argued that the Agency committed various procedural
irregularities which evidence pretext. The most salient is his claim that
the panel members were not qualified to be on the panel. He cites to
Agency Merit Promotion Plan, § 2.04, which provides that panel members
are responsible for disqualifying themselves, if for any reason, they
are in the direct line of supervision or part of the selection process.
Complainant notes that the Regional Human Resources Program Manager was
the technical supervisor over the position in question, and that the
two other panel members, Park Superintendents 1 and 2, were involved in
the selection process. Other than Complainant’s statements, and some
information on the definition of a panel, the record has no information
on the applicability of § 2.04 to the panel in question. The record
contains no information on the Board and panel members awareness of §
2.04 or whether the Agency normally adhered to § 2.04. The alleged
applicability of § 2.04 does not tend to prove discrimination.
Complainant has not pointed to a procedural irregularity which tends to
prove discrimination.
On appeal, Complainant contends that he had two years experience as the
acting Lead SHRO, not one. In support thereof, he submits SHRO meeting
notes dating back to May 2009. He stated in his affidavit, however, that
he acted as SHRO for approximately one year. Report of Investigation,
at 100. Also, the selection occurred around November 2009, so evidence
of notes going back to May 2009 does not show acting experience going
back two years.
Complainant also contended that some of the Board members were
uncomfortable with him not being chosen. A reading of the affidavits from
Board members shows that during the panel’s presentation to the Board of
its recommendation, some Board members had a concern about why Complainant
was not recommended because he acted in the position and did well,
but after the panel explained its decision, the Board agreed to chose
the selectee. Such weighing and discussion of relative qualifications
does not tend to show pretext, even where there is discomfort.
On appeal, Complainant asserts that in the Mediterranean and Mojave
Network, only 7.5% of all GS-13s are Hispanic. In light of the
Agency’s explanation for choosing the selectee, this evidence does
not prove pretext.
An employer has discretion to choose among equally qualified candidates,
so long as the selection is not based on unlawful criteria. In the
absence of such evidence, the Commission will not second guess an
agency's assessment of the candidates' qualifications. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981).
Complainant’s qualifications are not such that his non-selection
evidences pretext.
The FAD 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
January 20, 2012
__________________
Date
2
0120112278
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112278