0120122138
10-12-2012
Daron K. Owens, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Daron K. Owens,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122138
Agency No. 200105082011102500
DECISION
On April 17, 2012, Complainant filed an appeal from the Agency's February 29, 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 (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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's facility in Decatur, Georgia.
On April 26, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (45), and reprisal for prior protected EEO activity when:
1. On January 5, 2011, he learned that he had not been selected for the positions of Lead Police Officer and Detective;
2. On February 17, 2011, he learned that he had not been selected for the position of Management and Program Assistant (MPA), GS-0344-07; and
3. On April 19. 2011, management assigned him from the Veterans Benefits Administration (VBA) to a different work area and did not allow him to work overtime.
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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, with respect to claim 1, the record indicates that in a Partial Dismissal decision dated May 23, 2011, the Agency dismissed claim 1 as untimely in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant failed to timely contact an EEO Counselor regarding his January 5, 2011 non-selection.
Concerning claim 2, the record indicates that on February 9, 2011 Complainant applied for the MPA position at issue in this matter. The record further indicates that Complainant was not referred for an interview for the position. The selecting official indicates that Complainant was not the best qualified applicant to fill the vacancy. Specifically, the Agency found that the selectee had more relevant office and business experience necessary to meet the organizational demands of the position. The selecting official found that while Complainant had worked in the federal government for thirteen years, he lacked the necessary business experience for the position. The selectee had relevant experience in administrative duties including assigning the Chief of Police with personnel actions, monitoring inventory of and ordering office supplies, maintaining records of budget activity, serving as timekeeper and managing the personal identification verification and transit benefits programs for office personnel. Because the duties of the MPA position are essentially clerical and administrative, the selectee was found to be the best qualified for the position. While the record indicates that Complainant's resume showed he had earned a certificate in paralegal studies and various other certificates related to law enforcement, he was not found to be the best suited individual to fill the MPA vacancy.
Concerning claim 3, the Agency indicated in its final decision that Complainant was never assigned to the VBA, and only worked there on an as needed basis. According to the Agency, the VBA supervisor requested that Complainant no longer be allowed to work in the VBA area because he failed to help with security issues when he was there and regularly talked on his cell phone during his duty hours. The Agency further indicates that Complainant failed to change his behavior regarding his work in the VBA even after he was advised to do so. The record also reflects that Complainant continued to have the opportunity to work overtime at the Agency other than in the VBA. In that regard, the record indicates that Complainant was compensated for overtime from April 19. 2011 through July 2011.
Based on this evidence, the Agency concluded in its FAD that Complainant had failed to prove that the responsible management officials' proffered reasons for the disputed actions were pretext designed to mask discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1 - Procedural Dismissal
As an initial matter, the record indicates that the Agency dismissed claim 1 as untimely in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency determined that Complainant first sought EEO Counseling on March 23, 2011, regarding a non-selection which occurred on January 5, 2011. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, Complainant has not alleged that he was unaware of the time limitations for contacting an EEO Counselor in a timely manner, nor has he alleged that he was prevented by circumstances beyond his control from timely contacting an EEO Counselor. In that regard, we find that the Agency's dismissal of claim 1 of the instant complaint was proper.
Claims 2 and 3 - Adjudication of the Merits
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 Chapter 9, � VI.A. (November 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").
Here, we agree with the Agency's finding of no discrimination with respect to claims 2 and 3. To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she 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). 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 Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of discrimination based on race and color by demonstrating that (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); and EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996).
While Complainant satisfied the above elements to establish a prima facie case, the Agency successfully rebutted that initial inference of discrimination with its articulation of legitimate, nondiscriminatory reasons for the selection made for the MPA position and for its decision not to allow Complainant to work in the VBA area any longer. Complainant has failed to meet his burden of proving, by a preponderance of the evidence, that the Agency's proffered reasons were a pretext making discrimination. We note that in non-selection cases, pretext may be found where the complainant's qualifications are demonstrably superior to the selectee's. See, e.g., Hickman v. Department of Justice (Drug Enforcement Administration), EEOC Appeal No. 01A11797 (December 20, 2001). In this case, while Complainant's qualifications are noteable, he has not established that they are "demonstrably superior" to the selectee, such that it is clear that Complainant should have been selected over him. We find therefore that Complainant has failed to establish pretext on any alleged basis.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we
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
October 12, 2012
__________________
Date
2
0120122138
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122138