0120160207
01-31-2018
Karleen R.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karleen R.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120160207
Hearing No. 520-2014-00002X
Agency No. FNCS-2013-00231
DECISION
On October 13, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 10, 2015, 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, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) finding that Complainant did not demonstrate that she was subjected to discrimination when she was not selected for a GS-12 Program Specialist position.
ISSUE PRESENTED
The issue presented in this case is whether the AJ erred in finding that Complainant was not subjected to discrimination when she was not selected for one of several Program Specialist positions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Specialist, GS-11 at the Agency's Food and Nutrition Service facility in Boston, Massachusetts. Complainant applied for one of four GS-12 Program Specialist positions. The record indicates that both an internal and external announcement was created. She and six other applicants were interviewed by a panel. Complainant was not selected for any of the four positions. She maintained that she was better qualified than at least one of the selectees because she had been employed by the Agency for thirty years while the selectee, S4, had been employed for only a short time and had applied through the external announcement because she was not eligible for internal promotion. Complainant also alleged that she had often been asked to help train new GS-12 Program Specialists.
Believing that she had been subjected to discrimination, on March 12, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and age (62) when, on December 13, 2012, she learned she was not selected for a GS-12 Program Specialist position.
At the conclusion of 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 Administrative Judge. Complainant timely requested a hearing and the AJ held a hearing on May 5, 2015, and issued a decision on August 25, 2015. The AJ found credible the Agency's argument that Complainant did not do as well in the interview process as the selectees because she did not demonstrate that she had leadership and project management skills. The Agency asserted that because these were senior level positions, the panel was looking for candidates who had strong leadership and communication experience and skills. The record indicates that during the interview, Complainant was asked whether she had project leadership experience, and she replied "no." The panel also considered the educational qualifications of the candidates because a great deal of writing was expected from the selectees. Complainant had a high school degree with some college courses, while the selectees, collectively, had a bachelor's degree, two master's degrees, and a Ph.D.
Further, citing applicable law, the AJ determined that Complainant had not established that her qualifications were plainly superior to those of the selectees. The AJ also found that the fact that Complainant may have worked at the Agency longer than some of the selectees was not probative as length of service alone did not make an individual more qualified than another. To show pretext, Complainant argued that some of notes from the interview had been destroyed and therefore she could not adequately show that the Agency's reasons were pretext. The AJ addressed this issue finding that Complainant's writing sample was not part of the record because she had only provided one copy instead of a copy to the entire panel as everyone else had done. The notes regarding her interview had been destroyed by one of the interviewers because he changed offices before he learned of this complaint and destroyed many things in his office. The AJ admonished the Agency for failing to keep all of its records but found that the record overwhelming supported the Agency's nondiscriminatory reasons. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit a brief on appeal. The Agency submitted a brief which noted that the AJ correctly determined that Complainant was not subjected to discrimination as the Agency clearly explained why Complainant was not selected for one of the four Program Specialists positions. The Agency also noted that the AJ had correctly found that Complainant did not show that she was so much more qualified than the selectees that discrimination could only be inferred. The Agency found that Complainant did not show that its nondiscriminatory reasons were pretext for discrimination. Finally, the Agency noted that Complainant was subsequently promoted to a Grade-12 Program Specialist position, effective June 15, 2014.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that there is substantial evidence in the record to support the AJ's findings that assuming arguendo Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant did not demonstrate that the reasons were pretext for discrimination.
Moreover, the Commission has long held that an employer has the discretion to choose among equally qualified candidates. See Canham v. Oberlin College. 666 F.2d 1057, 1061 (6th Cir. 1981). Absent proof of a demonstrably discriminatory motive, EEOC will not second-guess an agency's personnel decision. See Burdine, 450 U.S. at 259. Therefore, upon careful review of the AJ's decision and the evidence of record, as well as the Agency's arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant has not proven discrimination by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which fully implemented the AJ's finding that Complainant did not demonstrate that she was subjected to discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
_1/31/18_________________
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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