Shantel H.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Jan 4, 2018

0120160110 (E.E.O.C. Jan. 4, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shantel H.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120160110

Hearing Nos. 550-2012-00005X; 550-2012-00006X

Agency Nos. NPS-07-0091; NPS-08-0464

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the August 18, 2015 final Agency decision (FAD) concerning her
equal employment opportunity (EEO) complaints 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supply Technician
at the Agency’s Golden Gate National Recreation Area in San Francisco, California.
Complainant stated that she has worked with the Agency for over 27 years, and held the position
of Supply Technician beginning in 1996. In April 2003, Complainant experienced a work-
related injury and went out on workers’ compensation disability medical leave. Complainant

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.
0120160110

2
stated that she was removed from employment with the Agency on February 20, 2008, after
declining a valid job offer.

Complainant applied for a Parks Ranger (Event Specialist) position announced under Vacancy
Announcement No. GOGA-0628. The position was announced under a merit promotion vacancy
announcement and a delegated examining unit (DEU) announcement for candidates outside of
federal employment. The Agency’s Human Resources (HR) Office sent the applicant list to the
Seattle office for rating because an employee in the Golden Gate HR Office had applied for the
position. Complainant was rated as “Qualified” and referred for further consideration as a merit
promotion candidate. On June 11, 2006, Complainant submitted a letter to the Human Resources
Manager (HRM) stating that she was requesting consideration for the position and a reasonable
accommodation for the physical requirements of the position. The Selecting Official (SO-1)
interviewed the top three candidates from the DEU certificate only and ultimately selected
Selectee-1.

On November 25, 2006, Complainant filed a formal complaint (Agency No. NPS-07-0091)
alleging that the Agency discriminated against her on the bases of disability and in reprisal for
prior protected EEO activity when2:

1. On September 9, 2006, she was not selected for a Park Ranger (Events Specialist)
position with the Special Park Unit Group (SPUG) advertised under Vacancy
Announcement No. GOGA-0628.

On May 14, 2008, Complainant applied for a Volunteer Program Specialist position advertised
under Vacancy Announcement Number GOGA-0822. The vacancy announcement stated that
applications would only be accepted from current Agency employees within the local commuting
area only. On July 15, 2008, the Agency sent Complainant a letter informing her that she was
not considered for the position because the position was open only to current permanent Agency
employees.

On October 21, 2008, Complainant filed a second formal complaint (NPS-08-0464) alleging that
the Agency discriminated against her on the bases of disability and in reprisal for prior protected
EEO activity when:

2 This case arose before January 1, 2009, the effective date of the Americans with Disabilities
Act Amendments Act of 2008, which made a number of significant changes to the definition of
disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because
this matter occurred in 2006 and 2008, the Commission will use the analytical framework as it
existed before the enactment of the ADA Amendments Act of 2008, to determine whether
Complainant is an individual with a disability.

0120160110

3
2. On July 26, 2008, she was not selected for the position of Volunteer Program
Specialist, GS-301-07/09, advertised under Vacancy Announcement Number
GOGA-0822.3

At the conclusion of the investigations, the Agency provided Complainant with copies of the
reports of investigation (ROI-1 and ROI-2 respectively) and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings.
On March 26, 2012, Complainant withdrew both of her hearing requests, and the AJ remanded
the complaints to the Agency for a final Agency decision on the record. The Agency issued a
consolidated final agency decision for Agency Nos. NPS-07-0091 and NPS-08-0464. The
Agency dismissed the complaints pursuant to 29 C.F.R. § 1614.107(a)(1) for stating the same
claim as had already been adjudicated by the Agency and/or the Commission. Additionally, the
Agency determined that the complaints should be dismissed for abuse of process pursuant to 29
C.F.R. § 1614.107(a)(9). Complainant appealed and, in Complainant v. Dept. of the Interior,
EEOC Appeal No. 0120131709 (June 19, 2015), the Commission modified the Agency’s
dismissal and remanded the complaints for a FAD. On August 18, 2015, the Agency issued a
FAD.

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. With regard to claim (1), SO-1 stated that he selected
the selectee (Selectee-1) because she had more experience than Complainant, including
experience as a Special Events Planner for the San Francisco Lesbian, Gay, Bisexual,
Transgender Center, as a volunteer with the Girl Scouts for 10 years, and as an Events Assistant
at four Sundance Film Festivals. SO-1 stated that Selectee-1 had performed duties similar to
those he expected the person hired to perform, including managing celebrities and handling
intense media scrutiny in high profile situations. SO-1 affirmed that Selectee-1’s recent
experience at the Agency would have been in a Field Supervisor type of role for the 8-10 staff
members performing the job Complainant stated she performed at Agency events. The
Administrative Officer noted that this position was listed as a GS-9/11, but Complainant did not
qualify at even a GS-5 level because she failed to include her college transcripts in her
application packet.

Regarding claim (2), the Selecting Official (SO-2) affirmed that Complainant was not selected
because she was outside the area of consideration since she was not a current Agency employee.
SO-2 confirmed that she limited the area of consideration to current Agency employees in order
to quickly fill the open position. SO-2 stated that she needed the position filled quickly because
they had a large program beginning in September and she needed the selectee functioning before

3 The Agency dismissed numerous other claims in both complaints. The Commission upheld the
Agency’s dismissal of these claims in Complainant v. Dep’t of the Interior, EEOC Appeal No.
0120131709 (June 19, 2015).

0120160110

4
then. SO-2 confirmed that she never saw Complainant’s application because Selectee-2 was the
only qualified candidate.

In attempting to establish that management’s reasons were pretextual, Complainant asserted that
the Agency was aware of her disabilities, and averred that the Agency manipulated vacancy
announcements by expanding or contracting the targeted field of applicants in order to eliminate
her. The Agency determined that Complainant’s claims were based entirely on conjecture and
speculation. The Agency concluded that Complainant did not prove by a preponderance of the
evidence that her qualifications were plainly superior to the selectees. The Agency determined
that Selectee-1 had more varied and complex experiences planning events than Complainant.
Further, Complainant was ineligible for the position in claim (2) because she was not employed
with the Agency while Selectee-2 was employed with the Agency at the time of her application.
Accordingly, the Agency concluded that Complainant had not shown that management’s reasons
for its actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she has applied for numerous positions with the Agency
and they have manipulated the selection process to discriminate against her. With respect to
claim (1), Complainant claims that the Agency asserted that she was not qualified for the GS-5
Events Assistant position; however, in 1999, she was rated by another component of the Agency
as qualified for a GS-9 position and above. Complainant argues that the Agency preselected
Selectee-1 by detailing her to the position. Complainant contends that the Agency used
subjective criteria in its selection decisions. Complainant claims that the Agency manipulated
the selection process in claim (2) by terminating her and later announcing the vacant position
was for current Agency employees only. Finally, Complainant provides background information
about her complaints against the Agency which she claims support her discrimination claims.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

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
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. 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,
0120160110

5
that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, as to claim (1), SO-1 affirmed that
he made his selection from the DEU certificate of eligibles and not the merit promotion
certificate. ROI-1, at 263. SO-1 asserted that the DEU certificate had a wider diversity of talent
and he decided to consider and interview candidates from that certificate only. Id. at 266. SO-1
confirmed that he selected Selectee-1 based on her extensive experience with negotiating,
issuing, and managing large, complex special-use permits. Id. at 337. SO-1 added that Selectee-
1 had experience dealing with celebrities and intense media scrutiny in high-profile situations.
Id. at 265. SO-1 stated that while Complainant had experience working a 1,500-person event,
Selectee-1 had the more significant experience being a field supervisor for a similar event that
Complainant would have worked. Id. As a result, SO-2 selected Selectee-1 from the DEU
certificate without considering any candidates from the merit promotion certificate.

Finally, with respect to claim (2), the Human Resources Specialist confirmed that Complainant
was not referred for further consideration because she was outside the area of consideration.
ROI-2, at 178. The Volunteer Program Specialist position was announced as open to current
permanent Agency employees only within the local commuting area. Id. at 178, 202. SO-2
stressed that a special allotment of money came through to the park; therefore, she limited the
area of consideration to hire someone quickly to get started on a huge program that was to occur
in September. Id. at 144. Complainant was not an Agency employee at the time and was not
referred for further consideration. SO-2 ultimately selected Selectee-2 who was the only
candidate who appeared on the eligible candidates certificate. Id. at 143.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way
Complainant can establish pretext is by showing that her qualifications are observably superior
to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply
one method and is not the only way Complainant may establish pretext as to her non-selection
claim.

As Complainant chose to withdraw her hearing requests, the Commission does not have the
benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that Complainant failed to show that her qualifications for the positions at
issue were plainly superior to those of the selectees. In this case, the selectees had attributes that
justified their selections, and the selection officials affirmed that they believed those selectees
were better equipped to meet the Agency’s needs. In the absence of evidence of unlawful
0120160110

6
discrimination, the Commission will not second guess the Agency’s assessment of the
candidates’ qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259.

The Commission finds no persuasive evidence that Complainant’s protected classes were a factor
in any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real
reasons and that discriminatory or retaliatory animus was a factor in its actions. Complainant
failed to carry this burden.4 As a result, the Commission finds that Complainant has not
established that she was subjected to discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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

4 To the extent that Complainant may be alleging that the Agency ignored her request for
reasonable accommodation as to the position in claim (1), the record reveals that Complainant
indicated in her June 11, 2006 letter that she was “requesting a reasonable accommodation with
regard to lifting factors, as I am able to lift no more than 25 lbs. at a time or consecutively.”
ROI-1, at 309. The physical requirements of the position at issue included lifting of 40-50
pounds. Id. at 293. SO-1 affirmed that he would have granted Complainant reasonable
accommodation had he selected her as the most qualified candidate for the position. Id. at 267.
However, SO-1 ultimately determined that Selectee-1 was the better qualified candidate.
Complainant has presented no evidence that the Agency was unwilling to reasonably
accommodate her or otherwise denied her reasonable accommodation during the selection
process. Accordingly, the Commission finds that Complainant failed to prove that the Agency
acted in violation of the Rehabilitation Act.
0120160110

7
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.
0120160110

8
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

January 4, 2018
Date