0120083002
12-17-2008
Rosemary Torres, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Rosemary Torres,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083002
Agency No. ARWSMR07APR01160
DECISION
Complainant filed a timely appeal from the agency's May 19, 2008 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked as
a Budget Analyst, GS-11, in the agency's Budget and Accounting Branch,
Garrison Resource Management Office, White Sands Missile Range, in
New Mexico.
Complainant filed an EEO complaint alleging that she was discriminated
against on the bases of age (52) and reprisal for prior protected EEO
activity under Title VII when she learned on February 22, 2007, that
she was not selected for promotion to the position of Budget Analyst,
GS-12, pursuant to vacancy WTB06705439, which advertised two slots.
A promotion panel of three reviewed the applications of candidates and
rated them based on criteria of budget programming, budget analysis,
fund control, use of accounting systems, budget and accounting process,
innovation, and customer service; and also looked at teamwork, team
leader/supervision, and education, but did not assign rating numbers to
these later things. The promotion panel referred 13 candidates to the
selecting official, including complainant. Averaging the ratings of
the panel members, complainant was the lowest ranked of the candidates
referred. Further, all the panel members consistently gave complainant
lower ratings.
The selecting official explained that she did not choose complainant
because she was not among the top three rated candidates. Selectees 1
and 2 (born in 1970 and 1975) were in the top three rated by the panel.
In explaining why she chose selectee 1, the selecting official explained
that she volunteers to take lead in projects such as programming and
execution of funds; provides quality work in highly visible programs
like the accounting structure of APC, the setup on the accounting system
of STANFINS, upkeep and training in the fund distribution database
of IOL, and work in reimbursable orders, distribution of funds, and
experience in systems. The selecting official also favorably cited
selectee 1's degree in financial management and extensive training,
which she continues, in financial management. The selecting official
explained that she chose selectee 2 because she volunteers to take lead
in projects such as programming and execution of funds; her expertise
in accounting systems such as STANFINS and SOMARDS, analytical ability
in the preparation, review, and correction of accounting reports, going
one step further in research and analysis management, providing quality
work in highly visible programs like Joint Review Program, STANFINS
transition project and training, year end list of obligations, up to
date finance requirements, and being best qualified in joint reviews of
the IOL database and internet systems to assure accounting data is error
free. The selecting official also favorably cited selectee 2's degree
in financial management and extensive training, which she continues,
in financial management.
The selecting official added that selectees 1 and 2 volunteer to take
the lead on harder projects, with mostly have excellent results, and
complainant does not volunteer for the harder projects, and when they
are assigned to her the results are not what would be expected of an
experienced analyst, but she does do her work.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her 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 decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant contends that the agency's reasons for not choosing her were
pretext to mask age and reprisal discrimination. She explains that
she has been a civil service worker much longer than the selectees,
and that while they oversaw budgeting, they did not actually perform
and execute it.
The vacancy announcement for the budgeting position described the
major duties as performing program planning and analysis work such as
multiple program budgeting; unstable operating programs with continuous
major reprogramming efforts; difficult programs of forecasting new
or reorganized operating units/programs with unpredictable variables
considered; complex multiple funding emphasizing reimbursable funds and
other appropriations; program budget estimates through analysis of program
plans and information; preparation of justification language, development
of supporting materials, and other variables for new programs; review
and consolidate budget/cost estimates through assessment of validity
of assumptions; presenting budgets at installation level, offering
independent analysis and recommendations; exercise fund control,
participate in forecasting process and negotiate to secure funds
reductions and requests; reprogram funds through review and analysis;
review financial reports; and conduct budget analysis and prepare budget
reports.
No one on the promotion panel nor the selecting official agreed with
complainant's assessment that she was better qualified than the selectees.
An employer has discretion to choose among equally qualified candidates,
so long as the selection is not based on unlawful criteria. In the
absence of such evidence, the Commission will not second guess the
agency's assessment of the candidates' qualifications. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981). Complainant
has not shown the selection was based on unlawful criteria.
On appeal, complainant recites two separate court and EEOC decisions
which found that years before, two employees were discriminated against
based on age when they were not selected for competitive promotions at
the White Sands Missile Range to the positions of Supervisory General
Engineer, GS-14 and GS-15. In response to complainant's appeal,
the agency submits affidavits from everyone involved in the selection
process credibly affirming that they were not involved in the above
two selections. The existence of these prior unrelated decisions is
not persuasive evidence of age discrimination in this case.
Accordingly, the FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z1008)
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
December 17, 2008
__________________
Date
2
0120083002
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083002