Willia M.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Mar 17, 2017

0120142232 (E.E.O.C. Mar. 17, 2017)

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

Willia M.,1
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120142232

Agency Nos. HS-11-FEMA-00117, HS-11-FEMA-00224

DECISION

On May 30, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s April 29, 2014, 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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, the Commission AFFIRMS the Agency’s final decision
finding no discrimination.

BACKGROUND

Complainant is a former Federal Emergency Management Agency (FEMA) employee who
worked for the Agency from March 22, 1993 to October 5, 2010. Complainant held various
positions during her tenure with the Agency. The most recent position she held was an
Emergency Management Program Specialist/Disaster Assistance Employee (DAE), GS-0301-
11, assigned to Region V in Chicago, Illinois. On October 5, 2010, Complainant’s temporary
appointment as a DAE was terminated for “Failure to Accept Deployment.”

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.
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Agency Case No. HS-11-FEMA-00117

From February 17 to March 3, 2011, FEMA advertised a vacancy for a Reserve Workforce
Program Specialist (RWPS) position, GS-0301-12/13 under Job Announcement No. MG-
201091295-LAW-440720-COR. The RWPS position was open to all U.S. citizens and was
designated as a full-time, temporary position not-to-exceed (NTE) two years. The vacancy
was assigned to Region VII in Kansas City, Missouri.

A total of 91 applicants, including Complainant, applied for the RWPS position. The record
reveals that 77 of those applicants, including Complainant, were referred on the “Eligibles
Certificate.” The Administrative Services Branch Chief (ASBC) reviewed the 77 resumes
provided by Human Resources and determined which applicants to interview. A Region VII
Human Resources Specialist (HRS-1) conducted a second review of applicant resumes to
determine if there were additional applicants to be interviewed. A total of six applicants were
sent to be interviewed. Complainant was not among those selected for an interview. A three-
member interview panel comprised of the ASBC, the Region VII Training Manger, and the
Region VII Budget Coordinator conducted interviews of the best-qualified applicants. The
Mission Support Division Director served as the Selecting Official for the RWPS position and
the Selectee was chosen to be hired.

On April 28 and May 24, 2011, Complainant received two email notifications informing her
that she was not selected for the RWPS position.

On June 28, 2011, Complainant filed an EEO complaint (Agency No. HS-11-FEMA-00117)
challenging her non-selection for the RWPS position.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ) or a final agency decision. When
Complainant did not request a hearing or final decision, her case was forwarded to the Office
of Civil Rights and Civil Liberties (CRCL) for a final decision.

Agency Case No. HS-11-FEMA-00224

On an unspecified date FEMA advertised a vacancy for a Disaster Assistance Employee (DAE)
position, GS-301, under Job Announcement No. MG-2011-DAE-DH-454054DAE. The
position was a temporary intermittent position where employees were to be called in and
deployed during disasters. The announcement was to be for a “newly formed IMAT cadre.”
Geographic availability was listed as nationwide.

On March 28, 2011, Complainant applied for the DAE position. The record reveals that over
4,000 applications were received. On September 8, 2011, Complainant received an electronic
mail notification informing her that “[her] application has been considered for [the DAE]
position; however, other applicants have been selected.”
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On November 6, 2011, Complainant filed an EEO complaint (Agency No. HS-11-FEMA-
00224) challenging her non-selection for the DAE position.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ) or a final agency decision. When
Complainant did not request a hearing or final decision, her case was forwarded to CRCL for a
final decision.

Consolidated Complaints

On March 21, 2013, CRCL consolidated Agency Nos. HS-11-FEMA-00117 and HS-11-
FEMA-00224 for joint processing.

The accepted claims are whether the Agency discriminated against Complainant based on sex
(female), age (63), disability (rheumatoid arthritis and fibromyalgia), and in reprisal for prior
EEO activity when:

1. On April 28, 2011, she was informed that she was not selected for the position of
Reserve Workforce Program Specialist, advertised under Job Announcement No.
MG-201091295-LAW-440720-COR.

2. On September 8, 2011, she was informed that she was not selected for the position
of Disaster Assistance Employee, advertised under Job Announcement No. MG-
2011-DAE-DH-454054DAE.

On May 9, 2013, CRCL remanded the complaints to FEMA for a supplemental investigation
because the subject cases were not sufficiently completed to render a final decision. Upon
completion, FEMA forwarded Complainant a copy of the Supplemental Investigative File and
provided her with a right to request a hearing before an EEOC AJ or, alternatively to receive a
final agency decision. 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 her to discrimination as alleged.

With regard to claim (1), the Agency determined management articulated legitimate,
nondiscriminatory reasons for failing to select Complainant for the RWPS position. The
ASBC stated she had no knowledge of Complainant’s prior EEO activity. The ASBC stated
she conducted a review of the resumes for determining which applicants to interview based on
the position requirements and evaluation criteria. She stated Human Capital did not establish
specific guidelines for managers to follow in conducting interviews. Thus, she explained she
identified the applicants for interview based on the following evidence of experience addressed
in their resumes: (1) demonstrated skill in analyzing workforce procedures; (2) experience in
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emergency/disaster activities (Federal, State, or Local); (3) knowledge of the Disaster
Assistance Employee Program; (4) experience in Human Resources (recruiting, training); and
(5) demonstrated skill in developing workforce policies and strategies.

Further, the ASBC noted the CORE position does not follow Title 5, Merit System competitive
procedures; thus, it does not involve rating and ranking candidates by scores. The ASBC
stated Complainant’s name was not referred for selection consideration because she was not
identified for an interview after a review of the resumes had been conducted by the ASBC and
HRS-1. The ASBC noted her review and the review by HRS-1 yielded a total of six applicants
to be interviewed. She stated Complainant’s resume was not determined to be one of the most
qualified applicants for interview consideration upon conclusion of the applications review.
Further, the ASBC noted the Selectee’s qualification comparison included a wealth of
experience in disaster activities with her past duties in the Region IV Mitigation Cadre roles,
and in performing her Training Lead CORE responsibilities. The ASBC also noted the
Selectee identified specific training experience in Disaster Assistance Employee Program and
past educational background in workforce procedures and policies.

Moreover, the Agency noted that comparing Complainant’s application to that of the Selectee’s
application, it finds Complainant’s qualifications were not demonstrably superior. The Agency
determined Complainant failed to produce any evidence demonstrating pretext or proving a
discriminatory or retaliatory motivation.

With regard to claim (2), the Agency determined management articulated a legitimate,
nondiscriminatory reason for not selecting Complainant for the DAE position. The Deputy
Branch Chief, Response Service Branch, stated that no selection was made for these positions.
He explained that because of the Agency reorganization, DAEs assigned to the Operations
cadre were no longer required. These DAES were thus available for reassignment and were
moved to the IMAT Cadre (so no new employees were needed). Thus, he stated that the
Agency was not required to bring on any additional individuals.

The Agency determined Complainant failed to provide any evidence demonstrating
management’s reason was pretextual. The Agency noted Complainant alleged that the
Agency’s actions were discriminatory based on her sex, age, disability, and prior EEO activity
because she did not believe that FEMA actually cancelled the vacancy announcement. The
Agency noted that in support of her assertion, she referred to the nonselection email
notification she received, which stated, “[y]our application has been considered for this
position, however, other applicants have been selected.” The Agency noted a Supervisory
Human Resources Specialist stated that others received the same wrong letter Complainant did.
She noted that the Specialist working on the announcement made an error by sending the
emails and they did not go back and send out correction letters to anyone. The Agency
determined Complainant failed to provide evidence rebutting the Supervisory Human Resource
Specialist’s stated reasons.

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On appeal, with regard to claim (1), Complainant claims that she had over 17 years of
extensive and varied experience working with FEMA. Complainant noted she had an
extensive and thoroughly detailed application. Complainant noted the Agency stated she was
not deemed to have been among the most highly qualified candidates, but she claimed
management provided no explanation as to why the applications of the six candidates who were
interviewed were in any way more impressive. Complainant noted that at the time of the
nonselection, she was actively engaged in ongoing EEO litigation.

With regard to claim (2), Complainant contends the “[A]gency danced around the issue of
whether it actually cancelled the vacancy announcement or whether it chose not to make a
selection because [Complainant] would have been determined to be the most qualified
candidate and then made a selection from the same vacancy at a later time.”

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. (Aug. 5, 2015) (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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). 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 Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

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With regard to claim (1), we find Complainant failed to establish a prima facie case of
discrimination based on sex because the Selectee was female, the same sex as Complainant.
Similarly, we find Complainant failed to establish a prima facie case of disability
discrimination. We note Complainant failed to show that either the ASBC or HRS-1, the two
individuals responsible for determining who received interviews, were aware she was disabled.
Additionally, we find Complainant failed to establish a prima facie case of retaliation.
Although the record indicates Complainant engaged in prior protected EEO activity, we note
that she has not shown that either the ASBC or HRS-1 knew of this activity. Specifically, both
the ASBC and HRS-1 stated in their affidavits that they did not know Complainant and did not
know of her prior EEO activity. While Complainant contends that she was subjected to
retaliation from managers in Region V who she claims blacklisted her based on her prior
protected EEO activity, we note that all of the management officials and coworkers from
Region V who were interviewed denied knowing that Complainant applied for the Region VII
position at issue. Further, all of the Region V employees stated that they were not contacted to
provide a reference for Complainant for the relevant position in Region VII. Thus, we find
Complainant did not establish that any Region V managers played a role in the nonselection at
issue. Finally, we note the record does not contain the age of the Selectee, thus, we are unable
to determine if Complainant established a prima facie case of age discrimination.

Assuming arguendo that Complainant established a prima facie case of discrimination on all
bases, with regard to claim (1), we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. The ASBC noted applicants were identified for
interview based on five stated criteria: (1) demonstrated skill in analyzing workforce
procedures; (2) experience in emergency/disaster activities (Federal, State, or Local); (3)
knowledge of the Disaster Assistance Employee Program; (4) experience in Human Resources
(recruiting, training); and (5) demonstrated skill in developing workforce policies and
strategies. After review of the 77 applications forwarded from Human Resources, neither the
ASBC or HRS-1 chose Complainant to proceed to the interview stage. The ASBC stated
Complainant was not determined to be one of the most qualified applicants for interview
consideration upon conclusion of the applications review. Further, the ASBC noted the
Selectee’s qualifications included a wealth of experience in disaster activities with her past
duties in the Region IV Mitigation Cadre roles, and in performing her Training Lead CORE
responsibilities. The ASBC also noted the Selectee identified specific training experience in
Disaster Assistance Employee Program and past educational background in workforce
procedures and policies.

Upon review, we find Complainant failed to prove by a preponderance of evidence that the
Agency’s actions were a pretext for discrimination or retaliation. With regard to her claim that
she should have been selected because she had worked at the Agency for 17 years (which was
longer than the Selectee) we note that just by virtue of having more years of service did not
make Complainant a better qualified candidate. Moreover, we note the record reveals that
Complainant was terminated by the Agency for cause in October 2010. There is no indication
the Selectee had been terminated for cause by the Agency. Based on a review of the record,
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we find Complainant failed to show that her qualifications were plainly superior to the
Selectee.

With regard to claim (2), we note the Agency articulated legitimate, nondiscriminatory reasons
for its actions. Namely, no selections were made for the advertised positions. We note the
Deputy Branch Chief, who assisted with the development of the position description used in
Vacancy Announcement MG-2011-DAE-DH-454054DAE, stated in his affidavit that
Complainant was not selected because no selections were made for the DAE position. He
explained that as a result of the Agency reorganization, DAEs assigned to the Operations cadre
were no longer required, and were available for reassignment and were moved to the IMAT
Cadre. Thus, he stated that the Agency did not hire anyone for the previously advertised
vacancies. In a clarification to the investigator, the Supervisory Human Resource Specialist
acknowledged that letters were sent to Complainant and others which stated that someone else
was selected for the position. However, she noted this letter was sent in error and no one was
actually selected. She stated that the Agency did not go back and correct the letters to any of
the applicants. The Agency provided a copy of another letter which was sent to another
applicant for the same position on September 8, 2011, stating “[y]our application has been
considered for this position, however, other applicants have been selected.”

Upon review, we find Complainant failed to show by a preponderance of evidence that the
Agency’s actions were motivated by discriminatory animus on any of Complainant’s alleged
protected bases.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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
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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. The requests 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 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. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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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

March 17, 2017
Date