Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Mar 20, 2014

0120130165 (E.E.O.C. Mar. 20, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120130165

Agency No. HHS-CDC-0325

DECISION
On October 11, 2012, Complainant filed an appeal from the Agency’s September 21, 2012
final decision concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq

. Our review is de novo. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Public Health
Advisor, GS-11, at the Agency’s work facility in Chicago. Complainant had been in his
position since August 1989. On January 4, 2012, Complainant filed an EEO complaint
wherein he claimed that the Agency discriminated against him on the bases of his race
(African-American), sex (male), and in reprisal for his prior protected EEO activity when on
September 13, 2011, he learned that he had not been selected for the position of Public Health
Advisor, GS-685-12/13, advertised under Vacancy Announcement Number HHS-CDC-MP-11-
494392. At the conclusion of the investigation, the Agency provided Complainant with a copy
of the report of investigation and notice of his 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).

In its final decision, the Agency explained that Complainant was on the best qualified list of
candidates for the Public Health Advisor position but was not interviewed. The selecting
official explained that the first step of the selection process was to convene a panel to evaluate
the applicants’ resumes based on prior experience in the following categories: (1) providing
technical assistance, navigating across Agency entities and public health experience; (2)
working within teams; and (3) external working relationships with grants, cooperative
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agreements and contracts. The selecting official explained that the four-member panel totaled
its scores in these three categories, and the individuals with the five highest scores were
interviewed. Complainant’s score did not merit an interview. The selecting official stated that
the selectee was an African-American female who was considered the best qualified applicant
for the position. The Agency determined that Complainant provided insufficient evidence to
establish pretext.

ANALYSIS AND FINDINGS
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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
We shall assume arguendo that Complainant set forth a prima facie case of discrimination on
the alleged bases. The Agency explained that although Complainant was included on the best
qualified list, his score under the criteria utilized was not high enough to be among the five
candidates who received interviews. The Agency stated that the selectee was the best qualified
applicant. We find that the Agency articulated a legitimate, nondiscriminatory reason for
Complainant’s non-selection.

In an effort to establish pretext, Complainant maintains that discriminatory bias is involved
because he has applied for over 40 positions during his employment with the Agency, yet he
has not received a promotion despite receiving “Fully Successful” performance ratings and
awards. In terms of the position at issue, there were sixteen applicants who made the best
qualified list based on a review of their resumes. Complainant had the fourteenth highest score
among these candidates. Therefore, Complainant was not close to being among the five
highest ranked applicants chosen for interviews. Complainant has made no showing that his
rating scores were in error or in any way attributable to discriminatory animus. Complainant
also claims that a Human Resources official and the selecting official made different statements
in their affidavits, but he fails to specify what those statements were and how they were in
conflict.

In non-selection cases, a complainant can establish pretext by showing that his qualifications
are “plainly superior” to those of the selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th
Cir. 1981). Upon review of the record, we observe that Complainant’s job experience
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included being an Agency Federal Public Health Advisor at the GS-11 level from 1989 to the
time of this non-selection. Complainant’s most recent duties from May 2004 onward involved
work as a Clinic Manager/Front Line Supervisor at the Agency’s Chicago Department of
Health STD/HIV Prevention and Care Program. Complainant has a bachelor’s degree in
Health Education and a master’s degree in Public Health.

At the time of the selection, the selectee had been a Health Scientist at the GS-12 level for over
a year in the Agency’s Office of Public Health Preparedness and Response in the Division of
State and Local Readiness. Prior to that, the selectee spent two years as a Health Scientist at
the GS-11 level in the Agency’s National Center for HIV/AIDS, Viral Hepatitis, STD and TB
Prevention in the Division of Viral Hepatitis. The selectee also had a master’s degree in
Public Health and prior work experience with the Department of the Interior and the Georgia
Department of Natural Resources.

Although it is evident that Complainant has lengthy experience in the Public Health field, the
selectee also has worked for the Agency in the Public Health sector and was at a higher grade
than Complainant. We do not find that Complainant’s qualifications were plainly superior to
those of the selectee so as to warrant a finding of pretext. The Agency’s determination in its
final decision that no discrimination occurred is AFFIRMED.

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.
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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

Date
March 20, 2014