0120103031
10-05-2010
Darryl W. Riser, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Darryl W. Riser,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120103031
Agency No. ARUSAR09OCT04478
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 26, 2010 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. For the reasons that follow, the Commission AFFIRMS the Agency's decision.
BACKGROUND
Complainant alleged that the Agency discriminated against him on the bases of religion (Islam), age (46), and reprisal for prior protected EEO activity when:
1. Complainant was not selected for the position of Equal Employment Opportunity Specialist under Vacancy Announcement No. NCDE01945469DR1.
2. In September 2009, Complainant was informed that Vacancy Announcement No. NCDE09145469DR was cancelled.
3. In September 2009, Complainant was denied reappointment to join the United States Army Reserves.
After the investigation of his complaint, Complainant was provided with the Report of Investigation (ROI) and informed that he could request a final agency decision or a hearing before an EEOC Administrative Judge. The Agency noted in its decision that Complainant requested an Agency decision.
In a partial dismissal of the complaint, the Agency dismissed claims 2 and 3 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Regarding claim 2, the Agency stated that the allegation failed to state a claim because Complainant was not aggrieved because the vacancy Announcement was cancelled and no one was selected. Regarding claim 3, the Agency determined that the claim pertained to his military status; that it was not properly within the federal sector EEO complaint discrimination process; and that therefore the claim should be addressed through the military's equal opportunity process.
In its decision finding no discrimination, the Agency found that Complainant failed to establish a prima facie case regarding any of the protected groups. The Agency concluded that Complainant was not selected because the selectee was better qualified because she had a year of experience as an Equal Opportunity Advisor (EOA); that she had completed the EOA certification training; and that she had Veterans Preference. The Agency noted that Complainant's application did not reflect any training or experience as an EOA.
The Agency also determined that even if Complainant had Veterans Preference and had comparable training and experience for the position, he was not qualified because the position required membership in the U.S. Army Reserve and Complainant's application for membership in the U.S. Army Reserve was disapproved. Regarding its re-announcement of the position, the Agency stated that it had a legitimate, nondiscriminatory reason for doing so. Specifically, the Agency stated that the person occupying the position was not permitted to be responsible for the Sexual Assault Victims Advocate Programs so the vacancy announcement was modified to eliminate the provision. The Agency also noted that applicants were instructed to reapply to be considered for the modified position.
On appeal, Complainant asserts that he was denied due process when he was not considered or involved in the Fact-Finding Conference (FFC). He also contends that the Agency improperly delayed the issuance of its decision.
Regarding his failure to be selected for the position, Complainant contends that he is qualified for the position. He also contends that the Agency's decision is false, misleading and biased. He asserts that he was better qualified for the position. Complainant also asserts that he was initially selected for the position but after the selecting officials became aware of his prior protected activity, the position was cancelled and he was not selected after the position was reposted. He asserts that in June and July 2009, he sent copies of his 2002 and 2003 complaints to the Human Resource Specialist (HRS) which contained his religion and date of birth and which were never investigated and that in August 2009, Major A selected and offered him the position. Complainant further asserts that he did not recall claiming Veterans Preference status, although the HRS requested a copy of his DD 214 to verify his status. He asserts that his denied reappointment to the U.S. Army Reserve was irrelevant because it was pending prior to his reappointment application's denial.
The record reveals that a FFC was held on February 24, 2010, at which three Agency witnesses testified and at which Agency counsel was present and questioned the witnesses. Transcript of Fact-Finding Conference, Feb. 24, 2010. Complainant did not appear at the FFC.
In an affidavit submitted after the FFC and addressing only the FFC issue, Complainant stated that he was denied due process because he was never considered nor involved in scheduling the FFC and that he was not aware until February 18, 2010, of the FFC's date when he received a telephone message from the Investigator. ROI, Exhibit F-21. Complainant stated that he had a conflict on that date. He also stated that he requested at that time that the Investigator send him all future correspondence by regular and electronic mail. Id.
A Memorandum prepared by the EEO Specialist reveals that there was communication between the Investigator and Complainant concerning the scheduling of the FFC. ROI, Exhibit F-22. The Memorandum reflects that Complainant was sent an electronic mail message on January 20, 2010, scheduling the FFC for February 24, 2010. The Memorandum also reflects that on February 18, 2010, the EEO Specialist spoke with the Investigator who told her that Complainant had informed her that electronic mail from her was going to his "spam" electronic mail folder; that he would not be physically attending the FFC because he would be out of town; and that he requested telephonic call-in procedures. Id. The Memorandum reveals that call-in procedures were sent to Complainant by way of electronic mail on February 19, 2010. The Memorandum also further reflects that on February 22, 2010, the EEO Specialist spoke with Complainant to discuss the FFC and again on February 23, 2010. The Memorandum reveals that on February 23, 2010, Complainant spoke with the EEO Specialist and informed her that his trip was cancelled but that he did not want to participate in the FFC. The Memorandum also reveals that Complainant indicated that he might participate by way of telephone or have a representative present and that he contact the EEO Specialist by close of business. Complainant did not do so. Id.
The record contains a sworn Declaration from the Investigator. ROI, Exhibit F-23. She stated that final preparations concerning the scheduling of the FFC were delayed until after January 15, 2010, pending the outcome of mediation scheduled for that date. The Investigator also stated that the Agency representative informed her that he would not be available until the week of February 22, 2010. The date for the on-site FFC was scheduled for February 24, 2010. The Investigator stated that the February 24, 2010 date was communicated to all parties involved by way of electronic mail in a January 20, 2010 Scheduling Memorandum. Id.; ROI at 243, 260. The Investigator further stated that she received a telephone call from Complainant on February 18, 2010, and he told her that he had not received any correspondence regarding the scheduled FFC; that he was not aware of it being scheduled; and that he would not be available until the week of March 22, 2010. Complainant also reported that he could not make any outgoing long distance calls and that his electronic mail account would not allow him to receive electronic mail from the Investigator's account. She also stated that prior to the scheduling of the FFC, there was successful electronic mail communication between her and Complainant.
In a March 1, 2010 electronic mail message to Complainant, the Investigator informed him that he would be given the opportunity to provide his testimony on March 10, 2010, since he did not attend the FFC and that she would follow-up by telephone call if she did not receive a response from Complainant. ROI, Exhibit F-23.
The record contains Complainant's resume in which he described himself as a Human Resources (HR) Generalist with extensive experience in HR generalist affairs, including employee recruitment and retention, staff development, mediation, conflict resolution, benefits and compensation, HR records management, HR policy development, and legal compliance. ROI, Exhibit F-9. Complainant indicated on his resume that he had demonstrated success in organizational development, developing teambuilding programs, and writing personnel manuals, corporate policies, job descriptions and management reports. His work experience from 2006 to the time of his application revealed that Complainant worked as a Consultant. As a Consultant, conducted coaching, training, conflict resolution and mediation, and provided human resources support services in affirmative action planning and training, employee relations training and EEO training. Id.
Complainant's resume also reflects that he worked as a Consultant/EEO Investigator from 2007 to 2008. Id. In this position, he investigated employee discrimination complaints for the private and public sector; engaged in affirmative action planning; arranged and conducted hearings to obtain information and evidence regarding disposition of claims; issued subpoenas; prepared written opinions and decisions; researched laws to prepare for hearings; reviewed and evaluated data on documents such as claim applications; ruled on motions; and participated in court proceedings.
Complainant indicated on his resume that he was "certified in federal EEO training." Id. His resume also reflects that he had a Master's degree with a major in Social Work and a minor in Military Science. He was working toward a doctoral degree, according to the resume.
The record contains the selectee's resume. ROI, Exhibit F-9. Her resume reflects that at the time of her application, she had been working as an EOA with the Agency from December 2008. Her resume also reflects that she was in the U.S. Army Reserves from September 2007 to December 2008 as an EOA. As an Agency EOA, she served as a subject matter expert and EOA for the TASS training center which serviced about 500 staff and students monthly. She conducted and monitored EEO training throughout the command; assisted soldiers with any equal opportunity issues that arose; formulated and developed programs to promote equal opportunity and the use of the dispute resolution program; planned and coordinated ethnic observances; and monitored the execution of equal opportunity programs with recommendations to correct inadequacies. Id. As an Agency EOA, the selectee also worked as an Instructor Writer-Human Resource Specialist. As an EOA with the Army Reserves, Complainant's resume reflects that her duties were similar to those of the Agency EOA.
The HRS stated at the FFC that Complainant did not apply the first time when the position was announced in March. She also stated that the position was re-announced. She stated that by electronic mail on August 12, 2009, she informed Complainant that his resume was being referred but because it was a military technician position, his eligibility for claiming Veterans Preference needed to be verified. She stated that Complainant mailed back a Form DD214 but it did not reflect the 5-point status that was required.
The HRS further stated that when the position was re-announced, the Sexual Assault Victims Advocate Program was removed from the announcement. Id. She stated that when Complainant re-applied, he did not claim Veterans Preference status. The HRS also stated that Office of Personnel Management regulations required that veterans be considered before nonveterans for the position. She stated that on the list of candidates, there were three veterans and two nonveterans and that the three veterans would have to be selected prior to the nonveterans. The HRS stated further that the selectee had a five-point Veterans Preference.
Major A stated at the FFC that she was an EOA for the 75th Division and that she also served as the Equal Opportunity Program Manager. Id. She stated also that she was the selecting official for the position. Id. She stated that she was not aware of any prior EEO activity, age, or the religion of any of the applicants for the position. Id. Major A stated further that the position required membership in the U.S. Army Reserve and that Complainant did not meet this requirement. Id. She stated that the selectee had the required certification for the position and so that there would be no need to send the selectee to training. Id. She also stated that the selectee had a good understanding of the division level structure. Id.
Major A stated that the position announcement had to be pulled back and the position re-announced because the EEO Specialist was not to perform the duties of sexual assault. Id. She also stated that Complainant was among the top five applicants but that only the top three were referred. Major A stated that she remembered that Complainant's resume reflected mostly his education and he had about a year of experience in the EEO area.
The record contains the Vacancy Announcements for Equal Employment Opportunity Specialists for Vacancy Announcement Nos. NCDE09145469 and NCDE09145469R1 respectively. ROI, Exhibit F-1; Exhibit F-2. Both reflect that U.S. Army Reserve membership was required.
The record also contains a letter, dated September 28, 2009, informing Complainant that his request for reappointment in to the U.S. Army Reserve was disapproved. ROI, Exhibit F-14.
ANALYSIS AND FINDINGS
In analyzing a disparate treatment claim, the Commission applies the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie case of disparate treatment, a complainant must show that (1) complainant is a member of a protected class; (2) complainant was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) complainant was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. The burden of production then shifts to the agency to articulate a legitimate, nondiscriminatory reason for the adverse employment action. In order to satisfy complainant's burden of proof, a complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination. Id.
The prima facie inquiry may be dispensed with where the agency has articulated legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Service Board 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).
The Agency's burden to articulate a legitimate, nondiscriminatory reason for its actions is not an onerous one. The explanation must be "set forth with sufficient clarity as to allow the employee a full and fair opportunity to demonstrate pretext." See Parker v. U.S. Postal Service,, EEOC Request No. 05900110 (April 30, 1990). The employer must provide a specific, clear, and individualized explanation for the treatment accorded the affected individual. See Teresita v. Department of Defense, EEOC Request No. 05950931 (Nov. 6, 1997); Brooks v. U.S. Postal Service, EEOC Request No. 05930625 (May 19, 1994). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
In nonselection cases, an employee may establish pretext by showing that the employee's qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Because 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).
Regarding the alleged delay by the Agency in the issuance of its decision, Complainant has not shown, beyond an assertion of a delay, how it prejudiced him.
Regarding the alleged due process denial, we find that the record does not establish that Complainant was denied due process. The record supports a finding that Complainant was given adequate notice of the scheduling of the FFC and an opportunity to participate in the FFC.
Regarding the Agency's dismissal of claims 2 and 3, the Commission notes that Complainant does not challenge their dismissal on appeal. Accordingly, the Commission affirms the dismissal of claims 2 and 3 on the grounds of failure to state a claim. Further, generally, where an agency cancels a vacancy announcement without making a selection, a complainant does not suffer any personal harm that would render a complainant aggrieved. Van Nest v. Dep't of the Army, EEOC Request No. 05960752 (Nov. 20, 1998); Grace v. Department of the Army, EEOC Request No. 05940969 (May 18, 1995). Regarding claim 3, the Commission finds it concerns a military matter over which we have no jurisdiction. See Birkle v. Department of the Air Force, EEOC Request No. 05931001 (July 15, 1994) (decision to deny complainant's re-enlistment was a military matter).
Regarding claim 1, Complainant's nonselection, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position. Accordingly, a prima facie inquiry is not necessary. At the very least, the position required Army Reserve membership which the selectee had. Complainant has not contended that he met this requirement. Because Complainant did not meet this requirement, he could not qualify for the position. In addition, the record reveals that the Veterans Preference candidates had to be selected first before selecting nonveterans. Moreover, Complainant has not shown that his qualifications were plainly superior to those of the selectee. An agency has broad discretion to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259. To the extent that Complainant is asserting that the canceling the position and modifying the re-announced position description evidenced a retaliatory intent to prevent him from being selected for the position, we do not so find. The Agency articulated a legitimate, nondiscriminatory reason for canceling and re-announcing the vacancy. Other than unsupported assertions, Complainant has not shown the Agency's reasons for canceling or re-announcing the position were pretextual. Construing the evidence in the light most favorable to Complainant, we find that he has failed to show by a preponderance of the evidence that the Agency's reasons for its actions were pretextual and that the real reason for the Agency's actions was discriminatory animus.
At all times the ultimate burden of persuasion remains with complainant to demonstrate by a preponderance of the evidence that the agency's reasons were pretextual or motivated by intentional discrimination. Complainant has failed to do so
CONCLUSION
The Agency's decision 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.
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 5, 2010
__________________
Date
2
0120103031
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120103031