0120130788
03-20-2015
Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120130788
Agency No. HHS-CDC-0444-2011
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 16, 2012 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Public Health Advisor at the Agency's National Center for Emerging and Zoonotic Infections, Animal Resources Branch in Atlanta, Georgia.
On August 18, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On November 22, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of sex (male) and age (over 40) when:
1. on August 9, 2011, he was notified that the position of Public Health Advisor, GS-0685-14, for which he applied under Vacancy Announcement No. HHS-CDC-MP-483838, had been cancelled; and
2. on June 29, 2011, he was notified that he was not selected for the position of Public Health Advisor, GS-0685-13, which was advertised under Vacancy Announcement Nos. HHS-CDC-DE-11-460919 and HHS-CSC-MP-460878.
Regarding claim 2, the Agency issued a notice of vacancy announcement for three senior Public Health Advisors under Vacancy Announcement Nos. HHS-CDC-DE-11-460919 and HHS-CSC-MP-460878. Although the subject positions were within the Program Operations Branch of the Immigration Services Division, the selectees would be assigned to duty stations in Oklahoma, Kentucky and Florida. Complainant applied for the subject positions in Oklahoma and Kentucky.
After the investigation of claims, the Agency provided Complainant with a copy of the report of investigations and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on November 16, 2012, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of sex and age discrimination regarding the non-selection at the Oklahoma duty station of claim 2. The Agency found, however, that Complainant established a prima facie case of sex and age discrimination regarding claim 1 and the non-selection at the Kentucky duty station of claim 2. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
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. Regarding claim 1, the Agency issued a notice of a vacancy for the Public Health Advisor, GS-14. The subject position was in the Program Operations Branch of the Immunization Services Division (ISD). The vacancy announcement indicated that the selectee would serve as the principal manager of considerable budgets. Each candidate's resume was reviewed by the selecting official for educational background and the following seven factors: experience with grants/cooperative agreements, working with the Procurement and Grants Office (PGO), working with the Financial Management Office (FMO), policy development, evaluation, use of financial systems and resource analysis. Complainant applied for the subject position and his application along with nine other candidates were referred to the selecting official for consideration.
Complainant was not one of the three candidates who were interviewed for the subject position. When one of the interviewees learned that the selecting official planned to forward her name to personnel for selection for the subject position, she withdrew her application. A second interviewee was chosen by the selecting official. However, personnel officials determined that she was not qualified for the subject position based on the amount of time she had been in a GS-14 position. On August 9, 2011, Complainant was notified that the selecting official had decided not to fill the position at that time.
The Branch Chief (Chief) stated that she was the selecting official. The Chief stated that because the subject position was the Program Operations Branch's lead for resource allocation at Headquarters, she was seeking an applicant with experience in procurements and grants, to include how grants and cooperative agreements worked. The Chief stated that she also wanted someone with experience working at the state level rather than someone processing only Center for Disease Control and Prevention experience, and someone with experience working with the POB and FMO. The Chief stated that she selected three candidates to interview based on their resumes which indicated they satisfied six or seven of the screening factors.
The Chief stated that following the interviews of the three candidates, she determined that a named female candidate was best qualified for the subject position because she had worked at the FMO and had worked extensively with PGO in her current position. The Chief found that the nature of this candidate's experience, in addition to manner in which this candidate was able to articulate her responses during the interviews made her the best qualified candidate. The Chief stated, however, the top female candidate withdrew her application. The Chief stated that she then forwarded the second top candidate "to personnel for selection, but personnel determined she was not qualified for the position based on the amount of time she had been a GS-123. There was no other candidate we wanted to select at that time, so no selection was made. We really need someone who can do this job well and therefore, we are going through the whole announcement process again."
The Chief stated that she did not interview Complainant for the subject position because he was not one of the top three ranked candidates. Specifically, the Chief stated that Complainant "certainly had experience working with grants and cooperative agreements. He also had experience working with the state and local grants. However, I did not see any experience working with the Procurement and Grants Office (PGO) or with the Financial Management Office (FMO) in his resume. Another role of the incumbent was to develop funding opportunity announcements. There is boiler plate for this but there are also significant areas that need to be written for what the applicant needs to do to get the money. I was therefore also looking for candidates who had experience writing funding announcements. I did not see that experience in [Complainant's] resume."
The Chief stated that she did not discriminate against Complainant based on his sex and age. For instance, the Chief stated "I do not know [Complainant's] age and that information is not included on the list of candidates. I do not care if a candidate is male or female but I do want a highly qualified staff."
Regarding claim 2, the Deputy Branch Chief (Deputy) was the selecting official for the positions of Public Health Advisor at the Oklahoma, Kentucky and Florida duty stations. The Deputy stated that the Chief assisted her with the selection process. The Deputy stated that she was looking for candidates with "one year of experience in immunization, experience implementing public health, experience working with the state or a local program, experience managing a program and budget experience."
Further, the Deputy stated while there were twenty-five candidates, including Complainant for the three vacancies, ten candidates were interviewed by telephone. The Deputy stated that she and the Chief "did do a breakdown of which candidates were applying where, but they were accessed together as a group. Of the ten interviewed, four were interested in Florida, six were interested in Kentucky and eight were interested in Oklahoma." The Deputy stated that during the interviews, she and the Chief asked "a question about given what the applicant knew of a field assigned position, what they saw as the biggest challenge they would face in the position. We asked the candidate to indicate the sorts of situations that frustrate them and how they handle those, to provide examples of any problems that required their analysis and how they had gained resolution; whether they had dealt with multiple high level priority projects and if so, how they handled their stress; to describe a working experience they completed that was most challenging in terms of planning and execution; to indicate the three most important work values. Whether they had disagreed with an action or decision of a supervisor and if so, how they approached the situation and resolved it satisfactorily..."
The Deputy stated that following the interviews, she and the Chief discussed each candidate and "their ability to work effectively in the program. In the Kentucky position, the Program Manager was leaving and we therefore needed someone who could jump right in and who had current immunization program knowledge. It is part of our process to create a good match between the candidate and the skill sets needed in the particular program."
The Deputy stated that she selected a named female candidate for the Kentucky duty station because she "answered the interview questions well. For example, under the first question, she indicated she felt the biggest challenge assigning her to a new environment would be getting to know the program staff and area. She demonstrated an understanding that she had to learn the program and respect what had been done in the past...she therefore answered the questions very well based on what we were looking for."
As for the Oklahoma duty station, the Deputy stated that she selected a named male candidate because he did very well during the interview. Specifically, the Deputy stated that the male candidate "had previously applied for a similar position but had not gotten it because he had not done well on the interview. This time, he did very well. We typically do rely on the same selection process and generally do a second round of interviews. However, if we have someone who has done exceptionally well, we will move them forward without going through that step. That is what we did with [male candidate] and [female candidate]."
The Deputy stated that she did not select Complainant for either position at the Oklahoma and Kentucky duty stations because he did not well during his interview. Specifically, the Deputy stated "there was no doubt that [Complainant] had a lot of experience with immunizations and he answered the questions fairly well, with the exception of the first question when he indicated he would be willing to step out of the role as a facilitator as an advisor and that his background would be a tremendous asset. He also did not answer the seventh question well where he provided an example of a disagreement with a supervisor and how he resolved it. One of my concerns was that there had been a lot of changes since he left the immunization program and I therefore did not think he would be ready to go if selected."
The Deputy stated while Complainant had experience for the subject position, he "did not have current experience. We did not feel he could walk into an immunization program and pick up where he had left off. In contrast, [male candidate] had worked in several field positions and had worked with several grantees for the immunization program. He had both excellent experience and current experience. [Female candidate] had previously worked with the Missouri immunization program and when ISD picked her up, she was assigned to Harrisburg, where she had a lot of excellent experience. Both of those locations necessitated that we select someone with more current experience. In addition, both candidates did better in the interview process than [Complainant] did. They thereby gave us an indication they would fit well with the program they were being recruited for."
Moreover, the Deputy stated that Complainant's sex and age were not factors in her decision to select the selectees for the Kentucky and Oklahoma duty stations.
Complainant asserted there has been a pattern of selections being made in POB wherein more females and younger candidates have been hired. However, the Deputy stated "I do not believe it is accurate that there is any bias or even any attention paid to the age or sex of those being selected. We are limited to the pool of individuals given to us to choose from and we want to make the right choice. We have a Public Health Prevention Service (PHPS) fellowship program at CDC and we have been fortunate to pick people up from that program. As part of that program, they work in Headquarters and in the field. If at the end of the program, they are available for hire, we have been able to pick them up. We have therefore hired younger staff through that process, both male and female."
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. 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.1
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
March 20, 2015
__________________
Date
1 On appeal, Complainant does not challenge the revised January 10, 2012 partial dismissal issued by the agency regarding two other claims (that he was discriminated against on the bases of sex and age when on December 3 and 15, 2010, he interviewed but was not selected for the position of Public Health Advisor, which was advertised under Vacancy Announcement No. HHS-CDC-T3-2011-0023 and on October 19, 2010, he interviewed but was not selected for the position of Public Health Advisor, GS-0385-12/13, which was advertised under Vacancy Announcement No. HHS-CDC-T3-2010-0644). Therefore, we have not addressed these issues in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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