0120080797
04-28-2010
Brenda Hunter, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Brenda Hunter,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120080797
Agency No. IRS-07-0163-F
DECISION
On November 26, 2007, complainant filed an appeal from the agency's
October 26, 2007 final decision concerning her 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., 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented is whether complainant established that she was
subjected to discrimination on the bases of race (African-American),
color (medium), age (56), and disability (arthritis, surviving cancer
patient) in connection with two non-selections.
BACKGROUND
At the time of events giving rise to this complaint and until her
retirement in February 2007, complainant worked as a Tax Resolution
Representative, GS-0526-9, for the Wage and Investment Division of
Customer Assistance Relationship & Education, at the agency's Internal
Revenue Service Field Assistance Center, in Dallas, Texas. Report of
Investigation (ROI), Exh. 29.
On July 3, 2006, complainant applied for two Tax Resolution Specialist
(TRS) positions under Vacancy Announcement Numbers 40-41-M6F4027F
(Farmers Branch, Texas) and 40-41-M6F4027F (Dallas, Texas). ROI,
Exh. 21-22. Both positions had the same selection process and involved
the same management officials.
The Ranking Official (RO) completed a ranking form for each applicant
based on his or her application package. ROI, Exh. 21-22. A candidate
received a total score based, in part, on the documentation of his or
her knowledge, skills, and abilities, for each of the five critical
elements for the position to be filled. Id. Complainant's total score
for each position was 50.6, ranking her fifth on the list of qualified
applicants for the Farmers Branch position and fourth on the list of
qualified applicants for the Dallas position. Id.
After each applicant was ranked by the RO, applicants who made the
best-qualified list (BQL) were interviewed by a three-member interview
panel.1 ROI, Exh. 5, at 2. On October 24, 2006, after receiving
a letter stating that she was qualified for the Dallas position,
complainant interviewed with the panel for the Dallas position. ROI,
Exh. 22. The Selecting Official (SO)2 made his final decisions after
receiving the panel's recommendations. ROI, Exh. 5, at 2.
On October 30, 2006, complainant was informed that she was not one of
the four individuals who made the BQL3 for the Farmers Branch position
and that she was not selected4 for the Dallas position. Complainant's
Affidavit (Complainant's Aff.), at 3, 5.
On January 24, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African-American), color
(medium), disability (degenerative arthritis, surviving cancer patient),
and age (56) when:
1. On October 30, 2006, she did not make the BQL list for the GS-0526-11,
TRS position announced on Vacancy Announcement Number 40-41-M6F4027F;
and
2. On October 30, 2006, she was not selected for the GS-0526-11, TRS
position announced on Vacancy Announcement Number 40-41-M6F4028F.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that she was subjected to discrimination as alleged.
Agency's October 26, 2007 Final Decision (FAD), at 17.
Specifically, the agency found that complainant had established a prima
facie case of discrimination based on race, color, disability, and age
for claim (2), but not on age for claim (1). Id. at 13, 15. The agency
then assumed, arguendo, that complainant had established a prima facie
case on all of the alleged bases and found that management articulated
legitimate, nondiscriminatory reasons for both claims. Id. at 14, 16.
Regarding claim (1), management stated that all applicants were ranked
by the RO using the same process that was used for prior vacancies and
complainant was not one of the four highest-ranked candidates. Id. at 14.
Regarding claim (2), the panel felt that the selectee was a stronger
candidate based on her interview and the SO followed the recommendation
of the panel. Id. at 16. Finally, the agency found that complainant was
unable to establish by a preponderance of the evidence that management's
reason was a pretext for discrimination. Id. at 14, 16.
CONTENTIONS ON APPEAL
On appeal, regarding claim (1), complainant asserts that her ranking
package was scored incorrectly because the RO failed to credit her
for certain teaching, speaking, and acting manager experiences,
thus putting her at a disadvantage when the applicants were ranked
for the BQL. Complainant's Appeal Brief, at 5. Regarding claim (2),
the crux of complainant's argument is that the agency preselected the
selectee for the position. Id. at 1. Complainant then asserts that
"if the agency is going to admit, as it does [in its final decision],
that preselection is attested to by coworkers exactly as claimed by
complainant, then the agency owes the EEOC a plausible explanation of
how this preselection, if it occurred, did not advance a discriminatory
end." Id. at 3. Complainant argues that the agency failed to provide a
legitimate, nondiscriminatory reason because it failed to either refute
the claim of preselection or explain why the preselection was not based
on discriminatory motives. Id. at 6. Finally, complainant asserts that
failure to provide training can be a basis for a claim of discrimination
and that, while the selectee was preselected, complainant was discouraged
and prevented from acquiring the training that would have allowed her
to be a more competitive candidate.5 Id. at 5.
In response, the agency requests that we affirm its final decision.
Agency's Appeal Brief, at 7. Regarding claim (1), the agency argues that
the ranking package was appropriately scored and ranked. Id. at 5-6.
Regarding claim (2), the agency asserts that the record does not support
a claim of preselection, that complainant has the burden of proof at
all times, and the allegation about the failure to provide training is
an untimely alleged discrete act that is unsubstantiated. Id. at 3-6.
ANALYSIS AND FINDINGS
Standard of Review
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 110, 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 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").
Disparate Treatment
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 Construction
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. Texas Department
of Community 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, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Regarding claim (1), assuming, arguendo, that complainant established
a prima facie case of discrimination on the bases of race, color, age,
and disability, the Commission finds that the agency articulated a
legitimate, nondiscriminatory reason for complainant not making the BQL.
Specifically, the RO attested that complainant, based on her application,
was ranked fifth out of the qualified applicants with a total score of
50.60, and only the top four qualified applicants made the BQL. ROI,
Exh. 9, at 2; Exh. 21.
Because the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reason is a pretext for
discrimination. In an attempt to show pretext, complainant argues that
she did not receive credit for the instructor training, public speaking,
or acting manager experiences listed on her application. Complainant's
Appeal Brief, at 5. Complainant noted that the RO wrote, "no public
speaking, no instructing" on her ranking form in giving her a score of
"4" for the "Customer Satisfaction - Application" critical element.
ROI, Exh. 21.
In this case, we find that complainant has failed to provide evidence that
her failure to make the BQL was due to discriminatory intent on behalf of
the agency. The RO attested that complainant fell between a score of "3"
and "4" for the "Customer Satisfaction - Application" critical element,
but that she received a score of "4" due to her documented experiences as
an on-the-job instructor, a Sunday School teacher, and a church speaker.
ROI, Exh. 9, at 3. In addition, the RO attested that, compared to the
applicants on the BQL, complainant lacked experience in many areas
listed on the crediting plan for the position: presentations at IRS
group meetings, instruction at informal or formal IRS classes, IRS/W&I
task force assignments, participation in media events, Toastmasters,
assisting taxpayers in a federally designated disaster area, or detail
to management. Id.; Exh. 26. Although complainant submits evidence on
appeal that she had experience as a Sunday School teacher, church speaker,
and acting manager, we find that the RO considered those experiences
when scoring her application, and that complainant has yet to provide
evidence that her application contained any of the experiences the RO
attested that she lacked.
Regarding claim (2), assuming, arguendo, that complainant established a
prima facie case of discrimination on the bases of race, color, age, and
disability, the Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for her non-selection. Specifically, the SO
attested that he relied on the recommendation of the interview panel,
whose members felt that the selectee was more prepared and better
demonstrated her knowledge, skills, and abilities in responding to the
interview questions. ROI, Exh. 5, at 2. The panel attested, and their
interview notes reflected, that complainant provided answers to some
questions that were unclear, fragmented, or incomplete; had limited
eye contact; and did not handle periods of silence well. ROI, Exh. 7,
at 2; Exh. 8 at 2; Exh. 22. This was in contrast to the selectee,
whom the panel attested was clear in her responses, gave excellent
examples of her experiences, appeared more prepared for each question,
maintained frequent eye contact, and handled the silences well. Id.
We note that complainant and the selectee received similar total scores
on their applications; complainant's score was 50.60 and the selectee's
score was 51.20. ROI, Exh. 22.
Because the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reason is a pretext
for discrimination. In an attempt to show pretext, complainant argues
that the selectee was preselected for the position because she had
prior knowledge of management's intent to post the position before
it was announced, she was encouraged to be ready for the interview,
and two coworkers attested that she was groomed for the position.
Complainant's Appeal Brief, at 1-3.
In this case, we find that complainant has failed to provide evidence
that her non-selection rested on discriminatory intent. While we are
not convinced that preselection occurred, we note that we have held
that preselection, per se, does not establish discrimination when it
is based on qualifications of the selected individual and not some
prohibited basis. McAllister v. United States Postal Service, EEOC
Request No. 05931038 (July 28, 1994). While complainant on appeal argues
that the agency must show that preselection did not occur or that, if it
did, it was not discriminatory, we emphasize that it is complainant who
has the burden to prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Because we find that complainant
has failed to offer probative evidence demonstrating that the agency's
selection decisions were based on prohibited bases under Title VII,
the Rehab Act, or the ADEA, we find that, even if the selectee was
preselected, no discrimination occurred. Ultimately, the agency has
broad discretion to set policies and carry out personnel decisions, and
should not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997).
For both claims, complainant asserts that there is a correlation between
management's actions and her race, color, disability, and age. First,
she feels that, from management's point of view, she does not fit their
idea of a manager or a lead because they want someone who does not have
a disability. Complainant's Aff., at 9. Second, she asserts that it was
rumored in the office that Field Assistance had too many African-Americans
in high-graded positions. Id. Third, she believes that management did
not want to invest in her career because she was eligible to retire. Id.
Beyond her bare assertions, however, complainant has not produced evidence
to show that the agency's explanations are a pretext for discrimination.
Accordingly, we find that the agency's finding of no discrimination is
supported by the preponderant evidence of record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
April 28, 2010
Date
1 The three-member interview panel included complainant's first-level
supervisor since 2004, complainant's Group Manager from 2004 to 2006,
and a Group Manager for another office. ROI, Exh. 6, at 1; Exh. 7,
at 1; Exh. 8, at 1.
2 The SO was complainant's Territory Manager and second-level supervisor.
ROI, Exh. 5, at 1; Complainant's Aff., at 1.
3 The BQL for the Farmers Branch position included two Caucasian, one
African-American, and one Hispanic, between the ages of 45 and 55. ROI,
Exh. 21. The selectee for the Farmers Branch position was Caucasian
and age 50. Id.
4 The selectee for the Dallas position was Caucasian and age 45. ROI,
Exh. 22.
5 In her formal complaint, complainant alleged that management had failed
to provide her with opportunities to take the Classroom Instructor
Training Course (CITC), and that her lack of such training was the
only thing that separated her from the Dallas selectee. ROI, Exh. 1.
Complainant alleged that she had been asking for the training since 2003
and specifically mentions an incident in May 2006 when she claims she
was denied the opportunity to attend a CITC in Dallas. Id. On March 5,
2007, the EEO Specialist discussed the complaint with complainant and
they agreed that her untimely claims related to training opportunities
could be raised as background investigation for the investigation of
the subject complaint. ROI, Exh. 3, at 1. As a result, we do not
directly address complainant's assertions that she was denied training
opportunities as a separate claim.
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0120080797
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080797