0120120010
03-22-2013
Ednora Armour-Ohanmu, Complainant, v. Chuck Hagel, Secretary, Department of Defense, Agency.
Ednora Armour-Ohanmu,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120120010
Hearing No. 570-2008-00875X
Agency No. 07-BTA-047
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 24, 2011, final order concerning her 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 following reasons, we AFFIRM the Agency's final order which found no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Budget Analyst at the Agency's facility in Arlington, Virginia. On July 1, 2007, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), age (60), and reprisal for prior protected EEO activity when:
1. On July 3, 2007, Complainant was informed via e-mail that she was not selected for the positions of Business Transformation Agency (BTA) Comptroller and BTA Deputy Comptroller/Budge Analyst; and
2. On December 13, 2007, Complainant was issued a Level 2 rating on her National Security Personnel System (NSPS) appraisal and received no payout shares?
The record reveals that in June 2007, Complainant applied for the Comptroller position and the Deputy Comptroller position. The Comptroller position required the incumbent to have creditable specialized experience that demonstrated technical proficiency in all aspects of the Planning, Programming and Budgeting, Execution System. Complainant's name was listed on the Certificate of Eligibles. The Selecting Official (SO) decided to conduct interviews before making selections for the two positions. The SO reviewed all of the resumes for both positions. She was looking for candidates with supervisory skills, command/agency budget formulation and execution, Congressional justification for unfunded projects, program objective memoranda, accounting and strategic initiatives. Fifteen of the candidates stood out from the pool; so the SO decided to interview them. Complainant was not one of the candidates selected for an interview for either position.
The SO contacted all 15 candidates but interviewed only 10 people for both positions. Following the interviews, the SO was not completely satisfied with any of the 10 interviewees. Following the interviews the SO learned of two current BTA employees who were interested in the positions. She interviewed both using the same questions used with the other10 candidates. She selected one candidate for the Comptroller position (white, male, DOB: 1964), and the other as the Deputy Comptroller position (white, female, DOB: 1957). Thus, the two selections were made noncompetitively.
The Comptroller became Complainant's first-line supervisor and shortly after taking his position, he met with someone from HR to discuss Complainant's work performance. The Comptroller determined that Complainant had problems with focus, teamwork and cooperation issues, and he noted that she made the workplace very uncomfortable. The Comptroller met with Complainant on or about September 7, 2007, to counsel her regarding these issues.
On or about December 13, 2007, the Comptroller rated Complainant as a Level 2 for the rating period covering October 1, 2006, through September 30, 2007. The Comptroller noted that three out of five objectives were barely at the acceptable level and that was achieved only in the last few weeks of the rating cycle. He also told Complainant that she needed to improve in the contributing factors, customer focus, and teamwork to raise her performance. As a result of the performance rating, Complainant did not receive payout shares, although she did receive a Government Wide pay increase.
Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a Motion for Summary Judgment regarding this matter. Complainant filed a Cross Motion, which requested that the Agency's motion be denied and which requested the approval of 27 hours of official time for completing the motion.
The AJ granted the Agency's Motion finding that there were no material facts at issue. The AJ found that the Agency had articulated legitimate nondiscriminatory reasons for its actions, namely, that both of the selectees possessed the key capabilities she sought for the position which included: (1) extensive experience in the DoD financial management roles and recently supported programs in the Defense Business Systems Acquisition Executive (DBSAE) organization; and (2) creditable specialized experience that demonstrated technical proficiency in all aspects of Planning, Programming, Budgeting and Execution System. In fact, the SO noted that the Comptroller had served as the Budget/Finance Lead for the Defense Agencies Initiative (DAI) and the Deputy Comptroller had served in the same role for the PEO Sounding programs. To show pretext, Complainant argued that she was objectively better qualified than the selectees. She also argued that the SO failed to select someone from the List of Eligibles. The AJ found however, that Complainant failed to provide any evidence which supported her position that she was more qualified than the selectees. Further, the Agency showed that the positions were listed as eligible for reassignments or re-promotion of qualified eligibles. Both the selectees were current BTA employees who were eligible for reassignment so directly reassigning them was allowed. Therefore, the AJ found that Complainant failed to show that discriminatory animus was involved with the decision not to interview her and to not consider her for the positions.
With regard to the performance appraisal, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for the rating, namely, that Complainant was given a rating of 2 due to work performance issues which included problems with focus, teamwork, and cooperation issues, including making the workplace very uncomfortable. The AJ found that Complainant failed to demonstrate that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. Accordingly, the AJ granted the Agency's motion and denied Complainant's cross motion.
CONTENTIONS ON APPEAL
On appeal Complainant corrects some of the record regarding her employment history. She contends that other than being told that her skills and experience did not meet the level required for the positions to be filled, no one has ever explained why she did not get an interview. Complainant also maintains that some of the candidates listed on the certificate of eligibles should not have been there because they had not met the time in grade requirement. Complainant indicates that the SO should have not disregarded the competitive process by making the two selections noncompetitively. Complainant also contends that there was preselection of one of the positions. Further, Complainant argues that her supervisor should not have been the rating official for her performance appraisal because he was not in the position long enough, and that he should have removed himself from rating her as there was a conflict of interest as he had been a member of the NSPS Pay pool. Finally, Complainant contends that she does not believe that the AJ read any of her pleadings.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, as was listed above. We find that Complainant has not presented any material on appeal which shows that the Agency's reasons for not selecting her for the position and for given her an appraisal rating of Level 2 was pretext for discriminatory animus. In fact, we note that other than Complainant's conclusory statements about being better qualified than the selectees, she makes no argument as to why this was so. We find that Complainant failed to show that her qualifications for the positions were so plainly superior to those of the selectees' that it would create an inference of discrimination.1
To the extent that Complainant is arguing that pre-selection took place, we note that while evidence of preselection may act to discredit the Agency's explanation for its selection decision, preselection does not violate Title VII when it is based on the qualifications of the selectee and not some basis prohibited by Title VII. See Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). Additionally, other than arguing that her supervisor was not yet eligible to rate her, she does not deny that a Level 2 rating was incorrect. We find that Complainant has not shown that the incidents described in this complaint were the result of discriminatory animus. Accordingly, we find that the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Pursuant to 29 C.F.R. �1614.605(b)(2) a Complainant shall have a reasonable amount of official time "to prepare the complaint and to respond to agency and EEOC requests for information." The Commission has held that it has the authority to remedy a violation of 29 C.F.R. � 1614.605(b)(2) without a finding of discrimination. Edwards v. United States Postal Service, EEOC Request No. 05950708 (October 31, 1996). The focus is on whether Complainant was actually denied a reasonable amount of official time. Id. Therefore, the Agency will comply with the Order below.
ORDER
The Agency, within thirty (30) calendar days of this decision becoming final, shall determine if Complainant took leave upon the denial of her request for official time to respond to the Agency's motion or an EEOC request for information. If so, the Agency shall reimburse Complainant for any leave that she incurred. A copy of the Agency's determination and reimbursement action, if necessary, shall be provided to the Compliance Officer as set forth below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
_3/22/13_________________
Date
1 We note that, in nonselection cases, an agency's articulated legitimate reason for its actions may be shown to be pretextual where a complainant's qualifications are demonstrably superior to those of the selectee's. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
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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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