0120063847r
03-21-2008
Vernard Evans, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Vernard Evans,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120063847
Hearing No. 100-2003-08280X
Agency No. ACF-009-02
DECISION
On June 16, 2006, complainant filed an appeal from the agency's May
15, 2006, 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-13 Developmental Disabilities Specialist in the Administration
for Children and Families (ACF) and Administration for Developmental
Disabilities (ADD). In April 2001, complainant applied for a promotion
to one of the newly created Lead Development Program Specialist (LDPS)
positions. Complainant was deemed qualified for the position, was
interviewed, and was notified that she was tentatively selected for
the position in October 2001. In addition to complainant, the agency
tentatively selected a Black male and a White female for the position.
However, according to the agency, complainant and the other selectees were
not placed into the position because of a hiring and promotion freeze.
Agency officials testified that the hiring freeze was relaxed in November
2001, but all promotions to the GS-13 level and above had to be approved
by the Assistant Secretary for Children and Families. None of the three
selectees for the LDPS positions were placed into the position.
Complainant filed an EEO complaint alleging that she was discriminated
against on the bases of race (African-American) and age1 (born September
27, 1946) when she was selected for a GS-15 LDPS position but was not
placed into the position because of hiring controls; and in October 2001,
a GS-14 Special Assistant to a Commissioner position was made available
to the Commissioner's White female friend, whereas complainant was not
made aware of this position or given a chance to compete for it.
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). Complainant timely
requested a hearing, and the AJ held a hearing on March 8 and 9, 2006 and
issued a decision on April 17, 2006, finding no discrimination. The AJ
found that complainant failed to prove that the agency's articulated
legitimate, non-discriminatory reasons for its actions were pretext for
unlawful discrimination. The agency subsequently issued a final order
adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred when he found no
discrimination. Complainant contends that the agency failed to give a
consistent reason why it failed to place her in the LDPS position; the
agency failed to properly designate the LDPS position as a non-bargaining
unit position; the Commissioner selected a White female to a GS-15
position despite the hiring freeze; and the Commissioner detailed
an African-American Division Director out of the ADD days after the
Commissioner testified at the hearing.
ANALYSIS AND FINDINGS
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, � VI.B. (November 9, 1999).
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny. See
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). For complainant to
prevail, she must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).
In this case, we find that the agency provided legitimate,
non-discriminatory reasons for its actions. Specifically, agency
management testified that complainant was not placed into the LDPS
position because a hiring freeze/control was placed on the position and
all positions at the GS-13 level and above. Regarding the GS-14 Special
Assistant to a Commissioner position, agency management testified that as
a political appointee, the Commissioner was entitled to select an agency
employee for an Executive Assistant position. The agency stated that
the Commissioner initially selected a 55-year old White female as her
Executive Assistant in a GS-14 detail capacity, but later promoted her
to the position permanently at the GS-15 level pursuant to a publicized
vacancy announcement. The Commissioner testified that her Executive
Assistant was selected based upon her experience in developmental
disabilities, many years of experience with the agency, and a personal
relationship with the Commissioner.
Complainant argues that the agency failed to give a consistent reason
why it failed to place her in the LDPS position. A review of the record
reveals that indeed agency officials appeared to be unsure of the extent
of the hiring control and the authority of agency officials to make
exceptions to the control. However, we find that the inconsistencies
in management's testimony were good faith attempts of agency officials
to recall confusing and changing agency directives on hiring, not an
attempt to cover discriminatory motives. Complainant also argues that the
agency's articulated reasons are pretextual because the agency failed to
properly designate the LDPS position as a non-bargaining unit position.
However, the record reflects that the agency's Human Resources office
designated the position as a non-bargaining unit position before the
relevant vacancies were announced, and there is no indication that
Human Resources' decision was based upon unlawful discrimination.
Complainant also contends that the agency's explanation is pretextual
because the Commissioner selected a White female co-worker to a GS-15
position despite the hiring freeze. We note that the Executive Assistant
position was a unique position that was exempted from the hiring control
and involved consultation and interaction with a political appointee,
and as such, was not similar to the LDPS position.
Complainant further argues that the agency's articulated reasons
are pretextual because the Commissioner detailed an African-American
Division Director out of the ADD because the Director raised concerns
about discrimination to the Commissioner. Complainant contends that the
AJ erred when he denied complainant's post-hearing motion to "reopen the
hearing" because the reassignment of the Director constituted new evidence
that was relevant to her complaint. However, we conclude that complainant
has failed to demonstrate how the Commissioner's alleged reprisal against
the Director in 2006 was related to her non-selection in 2001 and 2002;
therefore, we determine that the AJ acted within his discretion when
he denied complainant's request to allow testimony on the Director's
reassignment. Consequently, we find that substantial evidence supports
the AJ's conclusion that complainant failed to prove that the agency's
reasons for its actions were pretext for unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
_March 21, 2008_________________
Date
1 We note that on appeal, complainant states that he is not pursuing
her age discrimination claim.
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0120063847
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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