0120150153
03-20-2017
Harriet J.,1 Complainant, v. Lisa S. Disbrow, Acting Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harriet J.,1
Complainant,
v.
Lisa S. Disbrow,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120150153
Agency No. 9R1M13071
DECISION
On September 30, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 4, 2014, final decision 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, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the FAD properly found that Complainant failed to establish that she was discriminated against on the bases of bases of race (Caucasian) and age (52) when she learned on April 15, 2013 that she was not selected for the position of Nurse Specialist, GS-0610-11, under Vacancy Announcement 9R-ROBINS-845411-820865-TSC.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clinical Nurse, GS-0610-09 at the Agency's Robins Air Force Base facility in Warner Robins, Georgia. From February 20, 2013 to March 5, 2013, through Vacancy Announcement 9R-ROBINS-845411-820865-TSC, the Agency sought applicants for the position of Nurse Specialist, GS-0610-11 at Robins Air Force Base. The announcement stated that the primary purpose of the position is to provide comprehensive professional clinical and preventive nursing services to the assigned beneficiary population, listing the position's duties as: (1) provide comprehensive Disease Management Services, applying and promoting disease management, health promotion, and wellness concepts and strategies to patients; (2) provide specialized comprehensive prevention/intervention nursing services of an advanced nature and considerable difficulty to authorized beneficiaries; (3) identify candidates for disease management using specialized databases, tools and professional judgment; (4) train and mentor assigned personnel, and (5) participate in continuing education programs.
Applicants were required to have a current Registered Nurses license, and a degree or diploma from a professional nursing program approved by the state accrediting agency. The announcement noted that a Baccalaureate of Science degree in nursing (BSN) from an accredited educational institution was highly recommended and a Master's degree in nursing, managed care or another health-related field was highly desirable. It also stated that a national nursing certification in chronic care such as Chronic Care Professional certification was highly recommended, and advised that the incumbent was required to have a Basie Life Support (BLS) certification, but that advanced certifications such as Pediatric Advanced Life Support (PALS) were highly recommended.
The required knowledge, skills and abilities (KSA) of the position were shown as: (1) knowledge of an extensive range of advanced professional nursing care theories, principles, practices and procedures to perform highly specialized disease management nursing care on patients; (2) knowledge of pharmacological agents; (3) knowledge of administrative requirements for proper documentation of patient's condition; (4) knowledge of application of federal/state laws, professional principles on matters such as privacy, patient and family advocacy, safety, and infection control; (5) the ability to provide guidance to other professional nurses; and (6) the ability to communicate orally and in writing with a diverse group of individuals, to include use of the organization's computer information systems and database programs.
Complainant applied and was not selected for the position. On July 31, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. After 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 Equal Employment Opportunity Commission Administrative Judge. 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 her to discrimination as alleged. Specifically, the FAD found that Complainant was unable to establish that her qualifications were plainly superior to those of the selectee. Additionally, she was unable to establish that the Agency's use of panels and its evaluation method was improper or contained inconsistencies with previous selections made by the Agency. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant asks that the Commission overturns the Agency's decision. Complainant contends that the Agency has tried to explain its selection four different ways, and that these inconsistencies and contradictions represent a failure to present a legitimate non-discriminatory reason for the selection. Under these circumstances, Complainant contends that there is no need for her establish pretext, because a finding of pretext is supported by the Agency's shifting rationales for the selection.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially establish a prima facie case by demonstrating that 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, 441 U.S. at 804 n.14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. � 623(a)(1). When a Complainant alleges that she has been disparately treated by the employing Agency as a result of unlawful age discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [Complainant's] age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id.
The Commission finds that the Agency has satisfied its burden in the instant case. The record reflects that the selection process utilized here involved a scoring matrix consisting of three parts: Part I, Experience; Part II, Education; and Part III, training. For Part I, Experience, the matrix contained columns to assign points to each applicant under the six applicable KSAs, one point for "minimal experience," two points for "good experience," and three points for "exceptional experience." For Part II, Education, the matrix showed that an applicant should be awarded one point for a two-year degree, two points for a Diploma, three points for a Bachelor of Science degree, four points for a Bachelor of Science degree and additional education, or five points for a Master of Science in Nursing degree. For Part III, Additional Training, the matrix stated that the applicant would be awarded one point for each pertinent training course completed, up to a maximum of four points for four or more pertinent courses completed.
The record reflects that both Complainant and the Selectee were awarded maximum points for each of the six KSAs in Part I, and three points in Part III. In Part II, Complainant was awarded three points while the Selectee was awarded four points. Although both have a Bachelor of Science degree in Nursing, the record reflects that the Selectee had additional education warranting the additional point in that she had completed most of the coursework toward her Master's degree. The Selectee was chosen because she was the highest-ranking candidate with a total score of 25, which was one point higher than Complainant's total score of 24. A review of the ranking process applied in the instant matter is void of any evidence that Complainant's qualifications were far superior to the Selectee's.
While there were some differences in the selection process used in the instant matter, they were slight and insignificant with respect to the ultimate hiring decision. In both processes, members of a panel individually reviewed resumes and ranked their top three candidates. In the previous year's process, the panel included one additional member, and all the resumes were masked. The masking of the resumes was unnecessary in the instant selection process because the Selecting Official was familiar with all the candidates and would have been able to ascertain who they were regardless of whether their names were included. The Commission finds that the explanations asserted by the Agency were adequate, legitimate, non-discriminatory reasons for Complainant's non-selection. Thus, the burden now shifts back to Complainant to prove that the Agency's reasoning is pretextual.
We find that Complainant fails to satisfy this burden. Complainant failed to present any evidence of discriminatory animus. To establish pretext, Complainant argued that her qualifications were plainly superior to those of the selectee, and that the Agency's explanation regarding its use of panels and its evaluation method was full of inconsistencies. Both of Complainant's assertions either lack evidentiary support, or are insufficient to establish that her non-selection was motivated by discriminatory animus. An employer has discretion to choose among equally qualified candidates, and the Commission will not second guess the Agency's assessment of the candidate's qualifications so long as the selection is not based on unlawful criteria. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981). The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be challenged by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly found that Complainant failed to demonstrate she was subject to discrimination as alleged; the Agency's final decision is AFFIRMED. Complainant did not establish that she was discriminated against because of her race or age when she was not selected for the Nurse Specialist position, advertised under Vacancy Announcement 9R-ROBINS-845411-820865-TSC.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__3/20/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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