0120131376
05-19-2015
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120131376
Agency No. IRS-10-0161-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 4, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as an Independent Administrative Reviewer, GS-501-09, at the Agency's Kansas City, Kansas facility.
On January 19, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African), sex (female), and in reprisal for prior EEO activity when:
on October 26, 2009, she was not selected for the position of EEO Specialist, GS-0260-9/11, announced in Vacancy Announcement Number 15-95-W2151NO.
After the investigation of the complaint, 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 initially requested a hearing. However, Complainant subsequently withdrew her request. By a document titled "Amended Order of Dismissal" dated November 27, 2012, the AJ noted that on November 13, 2012, she issued an Order of Dismissal pursuant to Complainant's withdrawal of her hearing request, and that the subject Order was amended to reflect that Complainant also requested a final agency decision. Consequently, the Agency issued the instant final decision on February 4, 2013, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race, sex and retaliation. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Complainant, on appeal, argues that the AJ violated 29 C.F.R. 1614.109(b)(g)(i) and MD-110 Chapter 10 Section II 6(a)(b) [Administrative Appeal], when she did not issue a decision in stated complaint [emphasis in its original]."
The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, we find that Complainant, on appeal, has not provided any persuasive arguments regarding the AJ's failure to issue a decision in the instant case. The Commission determines that the record reflects that by letter to the AJ dated November 13, 2012, Complainant withdrew her hearing request. The Commission also determines that the AJ properly canceled Complainant's hearing request and remanded the complaint file to the Agency for an issuance of a final decision.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Associate Director stated that she was the selecting official for the position of EEO Counselor, GS-0260-7/11. The selecting official stated that she implemented a panel of three subject matter experts to conduct the interviews and to rate the candidates based on the interviews. The selecting official stated that the panel used a list of interview questions that were asked of each candidate. The selecting official stated that she sought someone who "had the broadest understanding of the agency (organizational knowledge) as well as employment-related matters. Good communication skills with the ability to clearly organize thoughts to respond to the question completely with clarity." The selecting official also sought someone with the following skills: ability to translate information orally in a clear, complete and understandable matter; knowledge of employment matters; knowledge of the EEO process and the role of the EEO office; and Agency organizational and structural knowledge.
The record reflects that 23 candidates applied for the subject position and were determined to be qualified. The record further reflects that out of 23 candidates, 12 candidates were determined to be Best Qualified list based solely on a review of their application packages. Complainant made the Best Qualified list. The panel interviewed all 12 Best Qualified candidates. The selecting stated after she received the panel's recommendations, she selected two selectees for the subject positions. Complainant was ranked last of the 12 candidates interviewed for the subject positions.
The selecting official stated that one of the two selectees was selected for the subject position because she "was able to clearly and specific respond to the questions relating real life experiences from her position as a front line manager. She gave very specific examples that demonstrated her knowledge and understanding of the EEO complaint process and the role of the counselor.
The selecting stated that she selected the other selectee because he "was able to convey the great deal of experience he had previously as a collateral duty counselor. His responses demonstrated his clear understanding of the EEO informal process and the role of the counselor. His voice projection was clear yet calming, as is needed as a neutral third party. His responses demonstrated his understanding of the neutrality." The selecting official stated that both selectees "were tied for first place which resulted in me going back and determining the steps to increase the number of selections from one to two because of expected attrition. Leadership experience."
The selecting official stated that she did not select Complainant for the subject position because she was not one of the strongest candidates based on the interview panel feedback. Specifically, the selecting official stated that Complainant "did not demonstrate current organizational knowledge of the EEO organization. The interviews were behavioral in nature, which means that past experiences predict future behavior. [Complainant] relayed information based on outdated organizational structure. She also failed to relay recent experiences in work/life that would have demonstrated her understanding of the job duties and role of the counselor which in turn would have demonstrated her ability to successful do the job." Moreover, the selecting official stated that Complainant's race, sex and prior protected activity were not factors in her decision to select the two selectees for the subject positions.
The Manager, Territory 14 was one of the three panelists for the subject positions. The Manager stated that the candidates "were each asked 12 interview questions and the responses were captured by each interview panel member. The responses each candidate provided to the 12 questions were the criteria. The questions by panel consensus were ranked based on did the candidate accurately and completely answer each question with specific information."
The Manager stated that the panel recommended two selectees for the subject positions because they were tied for number 1 and were best qualified. Specifically, the Manager stated that one selectee "was on point with her responses. [Female selectee] gave really good accurate, complete, and specific examples to answering all of the questions. [Female selectee] came across as well prepared for the interview." As for the second selectee, the Manager stated that he "showcased his length of experience via the way he answered the questions. He came across as very astute; he was a well modulated/calming voice; he came across as neutral."
Another panelist stated that Complainant "had some good information in her paperwork but was unable to make it relevant to the questions that were asked. She had counselor experience, but was not effective at taking the skills she had and making them fit the behavioral interview format. In comparison the selectees were able to make this adjustment and make their skills relevant to the behavioral interview format. [Complainant] later said she had never had a behavioral interview and was not familiar with the process."
The Manager stated that Complainant was not one of the two recommended candidates because "she appeared as if she was not prepared for the interview. [Complainant] responses were too general and lacked specificity. [Complainant] also used outdated experience, when her job application package clearly showed she had so many more recent experiences (work/life), she could have used. [Complainant] appeared as if she would have been well served by having a mock interview. [Complainant] did not come across as the best qualified candidate to recommend for the subject position, from the interview panel members' perspective."
Further the selecting official stated that she noted that the panel indicated that Complainant's responses to the questions were too general "to determine clear understanding of the job for which she was interviewing." The selecting official also noted that the panel recommended Complainant to have a mock interview in the future "to assist her in projecting information to the panel to demonstrate her capabilities."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
May 19, 2015
__________________
Date
2
0120131376
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131376
7
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