[Redacted], Kiara R., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Oct 12, 2021

Appeal No. 2021001658 (E.E.O.C. Oct. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kiara R.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2021001658 Hearing No. 551-2015-00216X Agency No. FS-2015-00189 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated December 7, 2020, finding no discrimination regarding her 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Residential Training Technician, GS-1702-06, at the Agency’s Columbia Basin Job Corps in Moses Lake, Washington. On January 30, 2015, Complainant filed her complaint alleging discrimination based on sex (female) and age (over 40) when: 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. 2021001658 2 On December 5, 2014, she learned that she was not selected for the GS-0186-07, Social Services Assistant (SSA) position advertised under Vacancy Announcement Number 14-5107-4907G-NR.2 Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 1, 2020, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. The record indicates that the Agency posted a vacancy announcement for the SSA, GS-06/07 position from June 23 to July 21, 2014, for 18 vacancies in multiple duty stations, including one vacancy in Moses Lake, Washington. Complainant applied for the SSA, GS-07 position in Moses Lake, Washington. The record indicates that the incumbent for SSA, GS-07 would be serving as a team Lead and assistant to the Dormitory Manager; lead a team of employees at the GS-06 level and below; provide on-site supervision of students to ensure a safe, health atmosphere; and supervise, teach, coach, and participate in recreational activities for students assigned to the dorm. The Agency indicated that three selection panel members (Panelists A, B and C) were convened to review candidates’ application packages, resumes, and reference checks and to conduct interviews. Panelist A was a lead panelist. The panel interviewed three qualified candidates, including Complainant. Each candidate was asked the same questions related to the position and the panelists took notes of their responses. Panelist A indicated that Complainant called him two hours after the end of the interview process asking for a second interview because she was not feeling well during her interview and knew she had not done well, but he told her a second interview was not allowed. Panelist B stated that in her opinion, Complainant was the most experienced and qualified candidate for the position. Panelists B and C stated that they did not participate in ranking the candidates after the interviews. After the interviews, Panelist A collected interview notes from Panelists B and C and forwarded those, including the panel’s written recommendation, to the Residential Manager. The recommendation statement indicated brief justification for three best qualified candidates’ qualifications for the position. Panelist A stated that a candidate, a Public Affairs Specialist, GS- 11 from Boise, Idaho, was the top qualified candidate and was originally selected but turned down the position (we shall refer to this person as the Boise candidate; we shall not refer to this person as the Selectee). 2 In her complaint, Complainant also alleged claims concerning her February 8, 2015 reassignment, February 13, 2015 nonselection, and harassment from her supervisor. On November 30, 2020, an EEOC Administrative Judge (AJ) issued a partial decision, without a hearing, finding no discrimination for these claims. On appeal, Complainant does not contest these matters. 2021001658 3 The Residential Manager reviewed the panel’s recommendation and forwarded the recommendation to the Center Director. The Residential Manager indicated that Complainant was not selected for the position because she was not the best qualified and had not previously held a GS-07 position. The Residential Manager also indicated that the Selectee was more knowledgeable with computers than Complainant. The Center Director concurred with the Residential Manager’s recommendation and forwarded the recommendation to the Job Corps National Office Director who ultimately selected the Selectee for the SSA, GS-07 position effective January 11, 2015. The Center Director stated that the Selectee was the most qualified and best fit for the job because the Selectee was already performing very well at his GS-07 grade level, was a team player, a good communicator, performed well under pressure, and worked very well with his supervisors. The record indicates that the Selectee was a GS-07, Training Technician, at the time of his application. He was detailed to a Nightshift Supervisor, SSA position from March to June 2014. During the detail, the Selectee supervised a crew of five employees and supervised a dormitory with up to 100 individuals during morning cleanups and helped prepare them for their training day. As a Training Technician, the Selectee held class with up to 23 students. The record also indicates that Complainant was a GS-06, Training Technician, at the time of her application. In her resume, Complainant indicated that she had been a Residential Day Officer, GS-06, at the Agency since June 2005. As a Residential Day Officer, Complainant’s duties involved assisting individuals receiving services through nonprofit Agency offered career planning, on-the-job training, job placement, food service, driver’s education, health/dental care, residential housing programs, overseeing dormitory management, conducting nightly bed checks and inspecting rooms, and helping students develop activities. Complainant appeals from the Agency’s final order. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 2021001658 4 In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). After a review of the record, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not selecting her for the SSA, GS-07 position. Although Complainant argues that the record shows she was the second recommended candidate, we find that the record does not make that clear. Although numbers were put next to the three candidates’ names on a sheet, it is not clear that this necessarily referred to the order of recommendation. Even if Complainant is correct, it appears that this simply may have been Panelist A’s sole opinion. Finally, even if it was the interview panel’s recommendation to recommend Complainant as the second best candidate, the many levels of review above the panelists were free to reject the recommendations. The ultimate person making the selection decision provided legitimate, nondiscriminatory reasons for the selection decision. The record clearly shows that the Selectee had experience at the GS-07 level that Complainant did not possess. We note that although Panelist B preferred Complainant, Panelist B also stated in her interview notes that the Selectee was “very” familiar with Job Corps as well and worked as a supervisor. Panelist C stated in his interview notes that the Selectee was a team lead while he was in Air Force and while working in this Job Corps facility. 2021001658 5 Despite Complainant’s contention that she had extensive background working on a Forest Service Job Corps and in residential, the vacancy announcement did not require such attributes. The record indicates that the Selectee, GS-07, had supervisory experience and performed very well in a supervisory position which were directly related to the position at issue. Complainant, GS-06, had no supervisory experience. We find that Complainant failed to show that her qualifications for the position were plainly superior to the Selectee’s qualifications. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021001658 6 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 October 12, 2021 Date