0120101915
02-09-2012
Melvin A. Warren, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Melvin A. Warren,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120101915
Agency No. 2009-0048-R11
DECISION
On April 8, 2010, Complainant filed an appeal from the Agency's March 4, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment for a GS-9 Workforce Development Specialist position at the Agency's Office of Transportation and Air Quality (OTAQ) in Ann Arbor, Michigan. The record reveals that the Agency advertised for both a Workforce Development Specialist (WDS) and a Management Analyst (MA) under the Federal Career Intern Program (FCIP) during the relevant time. The WDS was posted under vacancy announcement FCIP-AA-FY09-0003 and was open from January 30, 3009, through February 6, 2009. Complainant applied for and was found qualified for the WDS position. Complainant and Applicant X were the only two names listed on the certificate of eligible candidates. Complainant and Applicant X were interviewed for the position by the OTAQ Chief of Staff who was the recommending Official. The Agency subsequently decided to cancel the vacancies for both the WDS and the MA positions.
Complainant filed an EEO complaint dated April 7, 2009, alleging that the Agency discriminated against him on the bases of race (African American/White), sex (male), and age (64) when: on April 7, 2009, Complainant was notified that the position he applied for was cancelled without a selection being made.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency stated that the WDS position was cancelled due to the election of a new President of the United States and the fact that the new administration was focusing on the greenhouse gas policy, which would change the organization's priorities and could require restructuring of the office. The Agency concluded that Complainant failed to prove that its articulated reasons for its actions were a pretext for discrimination.
On appeal, Complainant claims the Agency could not provide any hard documents or evidence in support of its reasons for cancelling the vacancy announcement. Complainant claims the conclusion in the final agency decision is wrong, lacks critical thinking and good judgment. Complainant alleges that the Chief of Staff/Recommending Official misled after she notified him that the vacancy was cancelled by telling him that she urged him to check www.usajobs.gov for any opportunities that may open up in the Ann Arbor Office in the next several months since he claimed that FCIP job announcements are not posted on that website.
In response to Complainant's appeal, the Agency requests the Commission affirm management's legitimate, nondiscriminatory reasons for canceling the vacancy. The Agency argues that Complainant failed to show that its articulated reasons were a pretext for discrimination.
ANALYSIS AND FINDINGS
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").
Upon review, we find the Agency articulated legitimate, nondiscriminatory reasons for cancelling the WDS position. Specifically, the Agency noted that the WDS position was cancelled since a new President of the United States was elected which changed the focus of OTAQ business. The Chief of Staff noted that the interest in the greenhouse gas policy was at a high level and there were signals that the office's work portfolio would change rapidly. She stated that high level management indicated that a change in the organization's priorities could require restructuring and that management decided it did not make sense to fill certain positions when their function might change as well. The Deputy Director for OTAQ, the Selecting Official for the position, stated that the decision to cancel the WDS and MA vacancies and to not fill any vacancies in the organization was done in anticipation of the new administration's changing priorities for the Agency. The Deputy Director noted that he instructed his Chief of Staff and another member of his staff to engaging in a planning process in which the entire organization's strategic goals and objectives, including hiring, were reviewed in light of the new administration.
Complainant stated that the Agency's decision to advertise for the WDS position in a local Ann Arbor newspaper was evidence that the Agency wanted only non-minority applicants since Complainant stated that Ann Arbor was mostly a White area. Complainant also alleged that during the interview for the WDS position, he felt that the Chief of Staff displayed prejudice against minorities and universities. Complainant states that during the interview, the Chief of Staff informed Complainant that part of the job responsibilities of the WDS would be to ensure a diverse workforce. Complainant alleges that when the Chief of Staff stated that he may need to go out to minority colleges and universities for recruiting efforts, she told him that this would lower Ann Arbor/Agency standards by brining in individual with lower GPAs.
The Agency noted that its advertisement for the WDS position was consistent with Agency policy. Human Resources Specialist 1 noted that the WDS position was advertised in the Ann Arbor News from January 30, 2009, to February 6, 2009. He also noted that copies of the announcement were sent to the University of Michigan's Ford School of Public Policy, the University of Michigan's Ross Business School, and were posted on the web at m-live.com (a University of Michigan website). Human Resources Specialist 1 stated that advertising for the WDS position satisfied the public notice requirement for the position at issue.
With regard to Complainant's contention that the Chief of Staff displayed prejudice against minorities during the interview, in her Affidavit, the Chief of Staff noted that during the interview she discussed with each of the applicants how the organization should approach obtaining a diverse applicant pool since this was the primary responsibility of the WDS interaction with the Special Emphasis Groups and Program Managers. The Chief of Staff explained that she shared with Complainant that management believes recruitment efforts should continue to focus on the University of Michigan School, which is across the street from the office, is a top rated school, and is a public institution and not an Ivy League School. The Chief of Staff stated she asked Complainant and the other applicant what they believed the best approach to recruiting was and Complainant responded that he would go primarily to minority schools and she responded that management thinks we should continue to top tier schools and try to recruit a diverse applicant pool there. The Chief of Staff noted that the office uses the ranking of schools in the U.S. Business News and World Reports or similar publications to access the quality of Universities and Colleges' academic programs in determining whether or not to market for potential job applicants from their institutions. Upon review, we find Complainant failed to show that the Agency's explanations for canceling the WDS vacancy was a pretext for discrimination based on Complainant's race, sex, or age.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination 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
2/9/12
__________________
Date
2
01-2010-1915
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
01-2010-1915