0120122921
09-23-2014
Complainant v. Jacob J. Lew, Secretary, Department of the Treasury (Bureau of Public Debt), Agency.
Complainant
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Bureau of Public Debt),
Agency.
Appeal No. 0120122921
Agency No. BPD-11-0817-F
DECISION
On July 9, 2012, Complainant filed an appeal from the Agency's June 12, 2012, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 Commission accepts the appeal 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 the Agency properly found that Complainant failed to prove that the Agency discriminated against her on the bases of age and disability as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency's Bureau of Public Debt (BPD) in Parkersburg, West Virginia. On October 17, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and age (43) when:
1. on September 6, 2011, she was not selected for the position of Secretary, GS-0318-5/6, with BPD, as advertised under Vacancy Announcement (VA) No. 11-BPD-204ASR; and
2. in May 2011, she was not selected for the position of Human Resources (HR) Assistant, GS-0203-5/6, with BPD, as advertised under Vacancy Announcement No. 11-BPD-103AS.
Complainant also alleged that, during the informal EEO process, Agency officials lied to her about the availability of mediation. According to documents in the EEO Counselor's Report, Complainant completed a form asking to participate in the Agency's mediation process. In an e-mail to the EEO Counselor, the EEO Manager stated that the Agency does not offer mediation to applicants or individuals who are not BPD employees.
On March 9, 2011, the Agency announced two vacancies for a Human Resources Assistant to perform work in the Employees Benefits Branch of the Human Resources Operations Division. Complainant applied for the position and was one of 17 applicants named to the Merit Promotion Certificate for Noncompetitive Eligibles. In her application, Complainant noted that she was eligible for an excepted appointment under the Federal Employment Program for Persons with Disabilities. She indicated "KA" in response to the question whether she was eligible for a noncompetitive appointment under a Special Appointing Authority. Complainant included a copy of a Certificate of Eligibility for Vocational Rehabilitation Services and a Ticket to Work completed by a state vocational rehabilitation agency.
The selecting official, a Supervisory Human Resources Specialist (SO-1) chose two applicants, a male and a female, from the Merit Promotion Certificate for Competitive Eligibles. The record does not disclose the ages of the applicants listed on the Certificate or whether any of them had a disability.
On July 7, 2011, the Agency announced a vacancy for a Secretary to perform secretarial, administrative, and clerical duties in the Office of Public Debt Accounting. Complainant applied for the position and was one of the applicants named to the Merit Promotion Certificate for Noncompetitive Eligibles. In her application, Complainant stated that she was eligible for an excepted appointment under the Federal Employment Program for Persons with Disabilities and that she was eligible for a noncompetitive appointment under the Schedule A hiring authority. She included a Ticket to Work completed by a state vocational rehabilitation agency and a letter in which a health care professional stated that she was eligible for a Schedule A appointment. Complainant's resume noted that she earned a Bachelor of Science degree in Business Administration in 2011 and that she graduated from high school in 1986. In addition, the resume indicated that Complainant's most recent work experience was in an office-manager position that ended in December 1990.
The Director of the Division of Accounting Operations (SO-2) interviewed Complainant and the other applicants on the noncompetitive certificate as well as applicants on the competitive certificate. He chose a 44-year-old male applicant from the noncompetitive certificate for the position. According to SO-2's interview notes, the selectee's interview occurred on July 27, 2011, and Complainant's interview occurred on August 4, 2011. The selectee's application package noted that the selectee was eligible for an excepted appointment under the Federal Employment Program for Persons with Disabilities and that he was eligible for a noncompetitive appointment under the Schedule A hiring authority. The selectee included a letter in which a representative of the state Division of Rehabilitation Services stated that the selectee was eligible for a Schedule A appointment. In addition, the application package indicated that the selectee earned a Bachelor of Arts degree in Political Science and that his most recent work experience was in a staff-accountant position that ended in April 2010.
Complainant asserted that the selecting officials were aware of her age because her application identified the year of her high school graduation and were aware of her disability because of her Ticket to Work. She told the EEO Investigator that, although SO-2 did not ask questions about the Ticket to Work program during her interview, she "could sense he was curious and wished he could have asked." She stated that she learned that she had not been selected for the Secretary position through a July 12, 2011, update on the USA.gov website and a September 6, 2011, telephone call from SO-2's Management Assistant. She asserted that she was better qualified for the position than was the selectee because her education and work experience more closely matched the qualifications listed for position.
Complainant also asserted that her education and background more closely matched the requirements of the HR Assistant position than did the selectee's. She alleged that the selecting official discriminated against her by not interviewing anyone from the noncompetitive certificate.
SO-1 told the EEO Investigator that she and three other supervisors who conducted interviews for the HR Assistant position interviewed only the candidates who were on the competitive certificate. She did not interview or select Complainant because she did not consider any noncompetitive candidates. SO-1 stated that she was not aware of anyone's age or disability.
SO-2 told the EEO Investigator that he did not select Complainant for the secretary position because she was not the best candidate. He stated that he interviewed all of the candidates on the competitive and noncompetitive certificates. He further stated that he wanted a candidate who had a strong administrative-support background, exhibited strong organizational skills, and was dependable and a self-starter. According to SO-2, the selectee met those qualifications. SO-2 stated that Complainant "had a great education and exhibited good grades, but did not exhibit any recent work experience" relevant to the qualifications that he sought. He denied that he was aware of Complainant's and the selectee's ages and disabilities.
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 EEOC Administrative Judge (AJ). 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).
In its decision, the Agency concluded that Complainant did not prove that the Agency discriminated against her. With respect to the HR Assistant position, the Agency found that Complainant failed to establish a prima facie case of discrimination. The Agency similarly found that Complainant failed to establish a prima facie case of age discrimination with respect the Secretary position. Assuming that she established a prima facie case of disability discrimination, the Agency concluded that management offered a legitimate, nondiscriminatory reason for not selecting Complainant for the position. The Agency further concluded that Complainant failed to show that the articulated reason was a pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant raises no arguments on appeal. The Agency argues that Complainant's age and disability played no role in the selection decisions and that it correctly found that Complainant failed to establish that the Agency discriminated against her.
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 Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, a complainant generally must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The complainant must initially establish a prima facie case by demonstrating that she or 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, the 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). The complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256.
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In this case, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions and that Complainant has not shown that the articulated reasons were pretextual. SO-1 stated that she did not select Complainant for the HR Assistant position because she did not consider any noncompetitive candidates for the position. Complainant has not shown that SO-1's explanation is unworthy of credence or that considerations of age or disability more likely motivated her actions. Complainant's bare assertion that SO-1's failure to consider noncompetitive candidates was discriminatory is insufficient to establish pretext.
With respect to the Secretary position, SO-2 stated that he did not select Complainant because she was not the best candidate and did not have recent work experience demonstrating such qualifications as a strong administrative-support background and strong organizational skills. Complainant asserted that she was better qualified for the position than was the selectee, but she has not shown that her qualifications were plainly superior. In addition, given that the selectee was approximately one year older than Complainant, Complainant has not shown that her age motivated SO-2's decision. Further, although Complainant argued that she could sense that SO-2 was curious about the Ticket to Work program, she acknowledged that SO-2 asked no questions on the subject. Complainant has presented no evidence that SO-2 did not select her because of her age or disability. Accordingly, we find that Complainant has failed to establish that the Agency discriminated against her on the bases of age and disability when it did not select her for the position of Human Resources Assistant or Secretary.
Finally, we note that Complainant has objected to the Agency's actions regarding her request for mediation. Agencies have discretion to determine whether a dispute is appropriate for alternative dispute resolution (ADR) such as mediation, and an agency's decision not to engage in ADR may not be the subject of an EEO complaint. EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 3, � II.A.4-5.
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 and its finding of no discrimination.
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
September 23, 2014
Date
2
0120122921
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122921