0120112845
10-25-2011
Victor Mendoza, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Victor Mendoza,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112845
Agency No. ARCCAD10JUN02817
DECISION
On May 4, 2011, Complainant filed an appeal from the Agency’s April 7,
2011, 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 deems the
appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Material Expediter at the Agency’s Army Depot facility in Corpus
Christie, Texas. Complainant applied for a Production Controller position
under Vacancy Announcement Number WTAA10076083. When he was not selected
for the position, Complainant contacted the EEO Counselor.
On August 5, 2010, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of national origin
(Mexican-American, Hispanic),1 color (Brown), age (54), and reprisal
for prior protected EEO activity under Title VII and the ADEA when, on
or about June 10, 2010, he was not referred to a Production Controller
position under Vacancy Announcement Number WTAA10076083.
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 decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
The Agency found that the Agency provided legitimate, nondiscriminatory
reasons for its action. Namely, the Agency indicated that the Agency’s
automated job application system, Resumix, evaluated the resumes and
provided a score for the candidates based on the number of skills
a candidate meets for a position based on the applicant’s resume.
The Agency showed that 101 applicants were referred for the position
at hand, including Complainant. The Selecting Official asked the Human
Resources office to provide him with the candidates who received a rating
of 5 or higher. Complainant’s score was a 4. As such, Complainant’s
name was not one of the 21 candidates referred to the Selecting Official.
Based on the record, the Agency found that it provided legitimate,
nondiscriminatory reasons for not referring Complainant for the position
at issue. The Agency then determined that Complainant failed to establish
that the Agency’s reasons were pretext for discrimination.
This appeal followed. On appeal, Complainant that the selection process
was unlawful and that it was designed and approved by the Selecting
Official to exclude Complainant. Complainant asserted that his resume
demonstrated his superior qualifications and experience and should have
been selected but for discrimination due to his protected bases.
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”).
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail,
he or 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 Dep’t. of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency has provided
legitimate, nondiscriminatory reasons. The Human Resources Specialist
(HR Specialist) averred that Resumix rated the candidates giving scores
on however many of the seven sought-after skills the candidates addressed
on their resumes. The HR Specialist informed the Selecting Official that
there were 101 individuals who applied and told him how many candidates
received scored seven out of seven, six out of seven, five out of
seven, and so forth. Based on this information, the Selecting Official
asked to have the names of all those who rated five and above. The HR
Specialist indicated that she review the resumes of the 21 to confirm
the ratings provide by Resumix was correct. So of the 21 candidates,
14 were actually referred to the Selecting Official. The Selecting
Official made his decision from the 14 candidates referred to him.
Therefore, Complainant was not chosen. We find that the Agency has
provided legitimate, nondiscriminatory reasons for its action.
The Commission turns to Complainant to show that the Agency’s reasons
were pretext. Complainant asserted that he had the requisite skills
and should have been referred for consideration. Complainant argued
without specific evidence that his national origin, color, age, or prior
EEO activity played a part in the alleged discrimination. The Commission
finds no support to Complainant’s claims of discrimination. Therefore,
we conclude that Complainant has not shown that the Agency’s decision
not to refer Complainant for consideration of the position in question
constituted discrimination based on his national origin, color, age
and/or prior protected activity.
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 decision finding no discrimination.
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
October 25, 2011
__________________
Date
1 Although Complainant also alleged discrimination on the basis of race
(Hispanic), the Commission notes that it considers the term “Hispanic”
to be a national origin rather than a racial group.
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0120112845
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112845