Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionMar 9, 20150120123192 (E.E.O.C. Mar. 9, 2015) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120123192 Hearing No. 410-2010-0086X Agency No. 09-67004-00710 DECISION Complainant filed an appeal from the Agency’s June 11, 2012 Final Order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. and Title VII of the Civil Rights Act of 1964. For the following reasons, the Commission AFFIRMS the Agency’s Final Order, finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst at the Agency’s Marine Corps Logistics Command Base facility in Albany, Georgia. On April 13, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (60) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: Complainant was not selected for the position of Supervisory Management Analyst, YC-0343-03. 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). Complainant requested a hearing and the AJ held a hearing on January 23, 2012, and issued a decision on April 26, 2012. In his Decision, the AJ found that Complainant established a prima facie case of age discrimination. Specifically, the AJ found that Complainant applied for the identified position 0120123192 2 and was found qualified during the three hiring events conducted by the Agency to fill the position. Complainant was not selected and the Agency selected E1, a candidate younger than Complainant. The AJ also assumed, without so finding, that Complainant established a prima facie case of reprisal discrimination. The AJ observed that Complainant had previously engaged in protected activity and at least one of the members of the panel selecting E1 was aware of Complainant’s prior EEO activity. The AJ found, however, that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ found that the members of the selection panel1 used a ranking system in each of three rounds of the recruitment process used to fill the identified position. The record shows that the panel members awarded points to each candidate for experience, awards, education, training, and interview. In the third and final round, E1 outscored Complainant based upon the points awarded by the panel.2 The AJ found that E1 was awarded more points for experience in the third round based upon E1’s serving in the vacant Supervisory Management Analyst position (the acting head of the manpower unit) after the incumbent employee departed and before the instant recruitment was completed. The AJ considered Complainant’s contention that E1 was inappropriately in the position of the acting manpower head position because she served longer than 120 days in the higher graded position. The AJ found that E1’s permanent position as deputy to the manpower head made her a logical person to perform in the vacant position as a part of her duties as deputy prior to the time the head position was filled. The AJ found nothing improper occurred with respect to E1’s detail to the vacant position. Additionally, the AJ considered that Complainant had a college degree while E1 did not. The AJ noted that in the first round, Complainant’s score was greater than E1’s score and in the second round, the two candidates tied. The AJ found that both Complainant and E1 received advice from Agency officials regarding how to become more competitive in the hiring process after the first round of interviews and by the third round, E1 garnered more points from the panel members based on experience and achieved the highest score of any candidate in that round. Accordingly, the AJ found that Complainant did not show that her skills and qualifications were plainly superior to those possessed by E1. To the contrary, the AJ found 1 After completing the rating and ranking process, the selection panel referred its selection to the selecting official, SO, who did not sit on the selection panel. 2 In his Decision, the AJ explained that a total of three rounds were conducted before E1 was placed in the position. After the first round, the top two candidates declined to accept the position. The certificate of eligible candidates expired before the third highest scoring candidate (Complainant) could be selected. After the second round, again, the selected candidates did not accept the offered position. The Agency announced the vacancy a third time. This time without conducting interviews, E1 scored the highest of all candidates and she accepted the position. 0120123192 3 that the Agency made its selection in each round from a group of highly qualified candidates with the point differences between rounds and between candidates demonstrating the different ratings by the panel members that were not averaged. The AJ found that Complainant had not shown that more likely than not, the Agency’s reasons for selecting E1 were a pretext to mask age or reprisal discrimination. The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant points out that the AJ’s Decision contains a number or errors contained in the recitation of event dates contained in the factual findings. 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. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). 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 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 in this case, however, since 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); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (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); Holley, supra; Pavelka v. Dep’t of the Navy , EEOC Request No. 05950351 (Dec. 14, 1995). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. 0120123192 4 Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force , EEOC Appeal No. 01A00340 (Sept. 25, 2000). In the instant case, we find substantial evidence supports the AJ’s Decision. As a preliminary matter, we observe that the AJ’s Decision contains a number of typographical errors. For example, the Decision lists the date of the third and final hiring event as taking place in January 2010, when the record indicates the event occurred in January 2009. We find the handful of errors in the dates and specifically, the year of the identified events to be harmless errors that do not impact the AJ’s analysis of Complainant’s prima facie case of reprisal or age discrimination claim and are not material inconsistencies between the record and the AJ’s Decision. We assume for the purposes of this decision that Complainant established a prima facie case of age discrimination and reprisal. We find that the evidence supports the AJ’s finding that the slight shifts in points awarded to Complainant for her qualifications and points awarded to E1 over the course of the three hiring rounds, does not reflect discrimination. We observe, as did the AJ, that the selection panel selected from among highly qualified candidates and we concur with the AJ’s finding that the differences that separated the selected candidates were not great. We consider Complainant’s claim that in rounds one and two, some candidates were interviewed by telephone, while others interviewed in person. We find that the first two hiring rounds provide some background to the selection process that culminated in E1’s selection. We find substantial evidence supports the AJ’s finding that the slight discrepancies between the scores assigned to the same candidates between the multiple hiring rounds does not indicate that discrimination tainted the hiring process. We do not find any persuasive evidence that Complainant’s age or prior EEO activity motivated the selection decision and we find that substantial evidence supports the AJ’s finding of no discrimination. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s’ Final Order finding no discrimination. 0120123192 5 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. 0120123192 6 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 9, 2015 Copy with citationCopy as parenthetical citation