0120150231
03-14-2017
Caitlyn H.,1 Complainant, v. Michael Young, Acting Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Caitlyn H.,1
Complainant,
v.
Michael Young,
Acting Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120150231
Agency No. RD-2013-00184
DECISION
On October 21, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 15, 2014, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission MODIFIES the Agency's final decision which found that Complainant was not subjected to discrimination or reprisal.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination and/or reprisal when she was not selected for a position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Area Specialist, GS-11, at the United States Department of Agriculture, Rural Development Office Mississippi located in Jackson, Mississippi. On November 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), age (53), and reprisal for prior protected EEO activity when: on October 15, 2012, she learned that she was not selected for the GS-0301-12113, Assistant to the State Director (ASD) position, which was advertised under Vacancy Announcement Number MS-20 12-001 0.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Complainant indicated that she applied for the position and was selected for an interview. According to Complainant, she was interviewed by an interview panel but the questions asked during the interview were impossible to answer without having prior knowledge of the questions. Complainant described the questions as very unusual and did not match any of the knowledge, skills, and abilities (KSAs) of the position. She maintained that the questions were slanted toward one applicant, the Selectee. Complainant argued that she believed that she was as qualified as the Selectee. She opined that the only reason that the Agency selected the Selectee was because he was African American. She argued that she was not even considered because of her race. In fact, she maintained that the only time that the Responsible Management Official (RMO) hired white employees was when no one except white employees were in consideration. Complainant indicated that she believed that her prior EEO activity played a role in her not being selected for the position. She indicated that the RMO told the Area Director that he needed to tell Complainant that "she makes the decisions in the State."
The Agency denied that Complainant was discriminated against in the selection process based on her race, sex, age, or prior EEO activity. One of the panel members indicated that he assumed that Complainant was White and female, but he was not aware of her age or EEO history. He indicated that telephone interviews were conducted. All of the candidates were asked the same questions and members of the interview panel were looking at the overall knowledge and experience of the candidates with regard to the duties of the ASD position. A general score was given to each applicant based on their knowledge, experience, and the presentation of their responses.
Each panelist gave an individual assessment of the three applicants because they were on the telephone and not in the same location. The panelists were unanimous in their choice of the Selectee. According to the Agency, the Selectee was recommended because he was better qualified than the two other candidates that included Complainant. One panelist explained that the other candidates, including Complainant, did not interview as well as the Selectee. He indicated that, although he did not remember everything that was said during the interview, he did remember that the Selectee had much better responses to the questions posed to him, and was much more knowledgeable about the questions the panel members asked him and also had much better interview skills and presentation. He further stated that Complainant was not recommended because she did not demonstrate in her interview that she had the knowledge and skills to perform the duties of the ASD position. The panelist emphasized that as a panel member he took his responsibility very seriously. He states that he made his recommendation based on which candidate had the best interview, which encompassed knowledge of the position's duties and best answered questions related to the requirements of the position. He stressed that no other factors were taken into consideration.
The Selectee was also questioned about this matter. He indicated that he knew that the RMO did not like Complainant, but he did not know the reason for her dislike. He indicated that the RMO told him that Complainant mistreated the constituents of rural Mississippi and the employees under her supervision. The Selectee testified that once the RMO had received the certificate for the position, she laughed at the idea of Complainant applying for the job. RMO, he testified, stated "I know she doesn't think that I am going to give her a job after filing a complaint against me." RMO, he indicated, went on to say that Complainant was applying for a job only to file another EEO case against her.
The decision concluded that Complainant failed to prove that the Agency subjected her to sex, race, or age discrimination as alleged. Specifically, management explained that the Selectee was chosen for the position because he was found to be the best qualified. He ranked the highest of the three applicants based on his resume, interview performance, knowledge of the duties and responsibilities of the position, overall scoring on the selection criteria, and the recommendation of the panel. The RMO further stated that the Selectee was chosen for the position because he had previously served in the position in an acting capacity and the Agency was satisfied with his performance.
With regard to Complainant's age claim, the Agency indicated that she did not set forth any evidence which indicated that the Agency operated with a discriminatory animus involving her age in the selection process which it used in filling the ASD position. The Agency found that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination.
With regard to Complainant's reprisal claim, the Agency indicated that her prior EEO activity did not play any role in the Agency's selection process. The Agency again stated the Selectee was better qualified for the position. The Agency found Complainant failed to show that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. Although the Agency noted the comments of the Selectee regarding his conversation with the RMO, it found that the selection decision was clearly based on the Selectee's qualifications, not Complainant's prior EEO activity. Accordingly, the Agency found that the preponderance of the evidence in the record did not establish that reprisal discrimination occurred.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the Selectee was groomed for the position from the time that he was a GS-9. She maintains that the RMO took him out of his office and had him travel with her. The Selectee was also promoted to a GS-11 with the help of the RMO. Complainant contends that the RMO gave the Selectee an unfair advantage over all potential applicants. Moreover, Complainant maintains that the Selectee admitted that "he" along with the RMO came up with the list of questions for the interview, which, she contends, explains why he did better on the interview than she did.
Finally, she noted that the RMO mentioned her prior EEO activity to the Selectee, which she argues is evidence of reprisal.
In response, the Agency contends, among other things, that the Agency's FAD properly found no discrimination based on race, sex or age. In this regard, the Agency maintains that it articulated legitimate, nondiscriminatory reasons for not selecting her and she did not show that those reasons were a pretext to disguise race, sex or age discrimination.
With respect to Complainant's reprisal claim, the Agency maintains that the FAD properly found no discrimination based on reprisal because she did not establish a causal connection, or nexus, between the protected activity and her nonselection. Further, the Agency noted that the Selectee also had prior EEO activity.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination with regard to all of her bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that three panelist who were from different states and who had no knowledge of her prior EEO activity selected the candidate who they determined was the best qualified candidate.
We find that no persuasive evidence was presented that the panelists had discriminatory animus towards Complainant. The panelists indicated that they overwhelmingly selected the Selectee based on his interview, experience, and resume. Also, the RMO had worked with the selectee and liked his work attitude. As such, we find the Agency clearly articulated the reasons why Complainant was not selected for the position. The Commission has long held that an 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 Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant could have established pretext with a showing that her qualifications were plainly superior to those of the Selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant, however, did not make such a showing.
To the extent that Complainant maintains, the Selectee was pre-selected, we note that pre-selection, without more, does not constitute unlawful discrimination. The Commission has long held that pre-selection is not a violation of EEO laws as long as discriminatory factors are not considered. Complainant v. Dep't of Defense, EEOC Request No. 0520140462 (Sept. 25, 2015); Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120120166 (Aug. 7, 2015) (citing McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994)).
Notwithstanding the above, we find that RMO's comments to the Selectee about Complainant's EEO activity were in violation of our regulations prohibiting retaliation. The test is whether RMO's comments were reasonably likely to deter protected EEO activity by Complainant or another employee. As articulated in Section 8 of the EEOC Compliance Manual on Retaliation:
The anti-retaliation provisions are exceptionally broad. They make it unlawful 'to discriminate' against an individual because of his or her protected activity. This is in contrast to the general anti-discrimination provisions which make it unlawful to discriminate with respect to an individual's 'terms, conditions, or privileges of employment.' The retaliation provisions set no qualifiers on the term 'to discriminate,' and therefore prohibit any discrimination that is reasonably likely to deter protected activity. They do not restrict the actions that can be challenged to those that affect the terms and conditions of employment. Thus, a violation will be found if an employer retaliates against a worker for engaging in protected activity through threats, harassment in or out of the workplace, or any other adverse treatment that is reasonably likely to deter protected activity by that individual or other employees.
This broad view of coverage accords with the primary purpose of the anti-retaliation provisions, which is to maintain unfettered access to statutory remedial mechanisms. Regardless of the degree or quality of harm to the particular [complainant], retaliation harms the public interest by deterring others from filing a [complaint]. An interpretation of Title VII that permits some forms of retaliation to go unpunished would undermine the effectiveness of the EEO statutes and conflict with the language and purpose of the anti-retaliation provisions.
As the record indicates, the Selectee testified that the RMO told him that Complainant had filed an EEO complaint against her. We find that the disclosure of Complainant's EEO activities in the manner described by the Selectee would be reasonably likely to deter Complainant and others, including the Selectee, from engaging in protected EEO activity. Consequently, we find that Complainant demonstrated that she was subjected to retaliation.
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 FAD with respect to its determination that Complainant was not discriminated against with regard to her nonselection. We find, however, that she was subjected to retaliation with regard to comments made by the RMO about her to the Selectee. The FAD as MODIFIED is REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ORDERED to take the following remedial actions:
1. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her an opportunity to establish a causal relationship between the Agency's retaliation and her pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
2. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide at least eight hours of in-person EEO training to the RMO regarding her responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees.
3. The Agency shall consider taking appropriate disciplinary action against RMO. The Agency shall report its decision to the Compliance Officer referenced herein. 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 reason(s) for its decision not to impose discipline. If the RMO has left the Agency's employment, the Agency shall furnish documentation of the departure date(s).
4. The Agency shall post the notice referenced in the paragraph below entitled, "Posting Order."
5. 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 evidence that the corrective action has been implemented.
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.
POSTING ORDER (G1016)
The Agency is ordered to post at its Rural Development Office Mississippi located in Jackson, Mississippi copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1016)
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 the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
__3/14/17________________
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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