0120081643
08-07-2008
Cecilia C. Trentman, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Cecilia C. Trentman,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120081643
Agency No. BLM040400
DECISION
On February 22, 2008, complainant filed an appeal from a final agency
decision (FAD) dated January 23, 2008, 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.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a).
At the time of events giving rise to this complaint, complainant was a
temporary agency equal employment specialist, GS-12 at the agency's Office
of the State Director, Utah State Office, Bureau of Land Management
(BLM) facility in Salt Lake City, Utah. Her appointment expired on
April 30, 2004.
Thereafter, complainant filed an EEO complaint alleging that she was
discriminated against based on her national origin (Hispanic) and age
(63) when on February 20, 2004, she was not referred to the selecting
official and was not selected pursuant to merit promotion certificate
BLM-Merit-2003-0065, Equal Employment Opportunity Manager, GS-260-13,
in the same office and location she previously worked.
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 FAD concluded that complainant failed to
prove that she was subjected to discrimination as alleged.
After applying for this competitive position, thirteen candidates,
including complainant, were considered by a review panel of three for
referral to the selecting official. The panel reviewed the candidates'
applications and interviewed them by telephone, asking each the same
questions. It grouped the applicants into three categories, i.e.,
"top three," "highly qualified," and "qualified candidates." The first
and second categories had thee candidates each, and the bottom category
had seven. Only the top three candidates were referred to the selecting
official (ages 32, 47, and 57). Complainant was in the bottom group.
The selecting official, who was not on the review panel, chose the 47
year old candidate.
Panel members judged complainant's interview as not strong. Report of
Investigation (ROI), Exh. 7, page 17; Exh. 9, page 13. They variously
explained that complainant was nervous; read her application or resume
in response to questions, indicating she was not thinking on her feet,
did not directly respond to questions; and complainant said that regarding
following up on things, she was sometimes viewed as a nag. In contrast,
panel members judged the selectees' interview as good, explaining their
reasons. When asked by the EEO investigator to review the applications
of complainant and the selectee, one panel member commented complainant's
rambled with extraneous detail like a long laundry list, not separating
minor from major accomplishments; while the selectees' was targeted,
highlighting the important things, a good skill in a high level job. ROI,
Exh. 7, pages 23, 26. A review of the applications reveals that under
training and certificates, complainant gave a long list in chronological
order by title without separating things by significance, whereas the
selectees' for the most part did so.
On appeal, complainant argues that her application was tied for the
highest rating (by human resources), that she was working well in the
job which was being filled, and panel members falsely stated that they
were unaware of complainant's age and national origin, casting doubt on
their explanations for not referring complainant. On the later point,
complaint states she mentioned in the interviews that she had retired,
and her application states she was given the Hispanic Woman of the
Year award. Complainant also argues the quality of the investigation
was poor. In opposition to complainant's appeal, the agency argues that
the FAD correctly found no discrimination.
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").
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The agency explained that complainant was not referred to the selecting
official, and hence not selected, because a review panel of three judged
her not be as strong a candidate as others based on her application
and interview.
Complainant argues this is pretext to mask discrimination. She argues
that her application was tied for the highest rating. The record reflects
that the agency's human resources office rated candidate applications
for eligibility for referral to the review panel. There is no evidence
in the record, however, that human resources and the review panel were
looking for the same things. As argued by complainant, she received a
positive parting reference on April 30, 2004. However, this occurred
after the panel made its recommendation.
A close review of the panel members does not show that they falsely
stated they were unaware of complainant's age and national origin.
They were asked this long after the interview process. Two panel member's
responses indicate some difficulty of recall on this (ROI, Exh. 7, page
25, Exh. 9, page 24). The second panel member complainant said she
had been retired for nine years (which does not indicate exact age).
The third panel member stated he was unaware of complainant's age and
national origin. We do not find deceit. He stated this long after
complainant was interviewed, and this panel member expressed the belief
that the Hispanic award could go to a non-Hispanic (another panel member
expressed this too, noting something like this could go to someone who
benefited the Hispanic community).
Complainant failed to prove pretext or discrimination. We also
find that the investigation was adequate. The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 7, 2008
__________________
Date
2
0120081643
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081643