0120082539
11-14-2008
Colleen Bray, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Colleen Bray,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120082539
Hearing No. 450-2007-00414X
Agency No. FNCS 2007-00061
DECISION
On May 15, 2008, complainant filed an appeal from the agency's April
15, 2008 final order 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). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Nutritionist, GS-12, at the agency's Food and Nutrition
Service's (FNS) Mountain Plains Region in Denver, Colorado.
On November 21, 2006, complainant filed an EEO complaint. Therein,
she alleged that she was subjected to unlawful discrimination on the
bases of race (Caucasian) and age (53 years old).
By letter dated January 12, 2007, the agency accepted complainant's
complaint for investigation and determined that it was comprised of the
following claim:
On February 21, 2006, complainant was advised of her non-selection
for the Nutritionist position, GS-0630-13, vacancy announcement number
SW-05-122M1, located in the Dallas-Forth Worth, Texas area.
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).
Complainant timely requested a hearing and the AJ held a hearing on
February 21, 2008 and issued a decision on March 12, 2008. The AJ
found that complainant established a prima facie case of race and
age discrimination. The AJ further found that the agency articulated
legitimate, nondiscriminatory reasons for complainant's non-selection.
Specifically, the AJ noted that some of the members of the interview
panel testified that they were impressed with the selectee's work in
the Southwest region. Moreover, the AJ found that complainant failed
to establish that the agency's articulated reason for its action was
pretext for discrimination. The AJ stated that "[t]he evidence in
this case does not establish that [c]omplainant's qualifications were
observably superior to those of the selectee."
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant, through her attorney, asserts that the AJ's
decision finding no discrimination is improper. Complainant's attorney
raises numerous arguments on appeal. Complainant's attorney asserts
that complainant's qualifications were superior to the selectee's.
In addition, complainant's attorney states that the "[AJ's] refusal to
order the production of certain information by the agency, her refusal
to allow the testimony of certain witnesses, and her refusal to admit
relevant documents into evidence were contrary to law..."
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
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). She
must generally establish a prima facie case by demonstrating that
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). 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).
As an initial matter, the Commission notes that one witness testified
by telephone at the hearing held by the AJ. The Commission has held
that testimony may not be taken by telephone in the absence of exigent
circumstances, unless at the joint request of the parties and provided
that specified conditions have been met. See Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).1 Upon review
of the record, even if it is assumed that the AJ abused her discretion
by taking testimony by telephone, the Commission finds that the action
would have constituted harmless error.
The Commission finds that there is substantial evidence in the record
to support the AJ's finding that the agency articulated legitimate,
nondiscriminatory reasons for complainant's non-selection. The record
reflects that complainant and the selectee made the best qualified
list for the position in question. An interview panel was created
and was comprised of three individuals. Complainant and the selectee
were both interviewed for the position.2 One of the panel members (P1)
testified that complainant knew the objectives of the Southwest region.
Hearing Transcript (HT) at 102. Specifically, P1 asserted that "[e]ach
region implements different aspects of the program differently. And [the
selectee] knew the direction that [the] Southwest region was going in,
and she articulated that very well." Id. Another member of the panel
(P2) asserted that prior to the selectee's interview, the selectee
had worked in her section. HT at 121. P2 stated that she was impressed
with the selectee's leadership capabilities. Specifically, P2 stated
"the thing that most impressed me was [the selectee's] ability to work
with others, other individuals from nontraditional partners to get
their commitment to share resources, share information and work toward
a common goal so that we would have outcomes." Id. The third member of
the panel (P3) testified that the selectee was the best candidate for the
position in question because she worked in the Southwest region and had
"worked across the board as well..." HT 171-72. The selecting official
(S1) for the position in question testified that she did not interview
the candidates. HT at 188. S1 further testified that, after the panel
conducted the interviews, only one person was recommended, the selectee.
HT at 190. S1 stated that she followed the panel's recommendation. Id.
The Commission finds that there is substantial evidence in the record to
support the AJ's finding that complainant failed to establish that the
agency's articulated reason for its action was pretext for discrimination.
While complainant asserts that her qualifications are plainly superior
to those of the selectee, we disagree. Complainant, for example,
states that she has a master's degree while the selectee does not.
P2 asserted that she felt the candidates on the best qualified list
all met the educational criteria and "so they were basically equal in
education, as far as I was concerned." HT 131.
Complainant's attorney contests various rulings by the AJ pertaining to
witness testimony and the rejection of exhibits at the hearing. An AJ
is afforded broad discretion in the conduct of the hearing and related
proceedings. See 29 C.F.R. � 1614.109. Upon review of the record, we do
not find that the AJ abused her discretion with respect to these matters.
Finally, complainant's attorney asserts that the AJ should have drawn an
adverse inference against the agency; since, it was unable to provide
copies of the interview notes taken by panel members.3 In the instant
matter, we note that all three members of the interview panel testified
at the hearing. In addition, some panel members asserted that they based
their selection upon their observations of the selectee's prior work
experience (rather than solely her interview) within the Southwest Region.
Thus, we do not find that the AJ abused her discretion by not drawing
an adverse inference with respect to the agency's failure to produce a
copy of the interview notes.
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 order implementing the AJ's decision finding no discrimination.
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 (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
November 14, 2008
Date
1 In Louthen, the Commission promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint and
voluntary request by the parties with their informed consent. Further,
where telephonic testimony is improperly taken, the Commission will
scrutinize the evidence of record to determine whether the error was
harmless.
2 The record reflects that complainant (employed in the Mountain Plains
Region) was interviewed by telephone and the selectee (employed in
the Southwest Region) was interviewed in person. The record contains
a declaration under penalty of perjury from a panel member. Therein,
she stated that it was standard practice in the Southwest Region to
conduct interviews by telephone when the applicant is not local.
3 Upon review of the record, it appears that some members of the panel
discarded their interview notes. We further note that the record is
devoid of evidence that the panelists discarded their notes after the
agency was informed that complainant was pursuing an EEO complaint with
respect to her non-selection.
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0120082539
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082539