0520110654
02-08-2012
Graciela R. Scambiatterra, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Graciela R. Scambiatterra,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Request No. 0520110654
Appeal No. 0120112037
Agency No. 2009-0019-R05
DENIAL
Complainant timely requested reconsideration of the decision in
Graciela R. Scambiatterra v. Environmental Protection Agency, EEOC
Appeal No. 0120112037 (July 14, 2011). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
BACKGROUND
Complainant worked as a GS-12 Environmental Scientist. She was
interested in advancing to the GS-13 level. At the time relevant to this
complaint, the Agency had two GS-13 vacancies: Environmental Scientist,
and Environmental Protection Specialist. Complainant applied for the
scientist vacancy but not the specialist vacancy, because management
told her that they would consider her for the specialist position, so
long as she applied for one of the two GS-13 vacancies. Eventually,
the Agency selected two white males, and informed Complainant that it
had not considered her for the specialist position at all. Complainant
maintained that the Agency discriminated against her on the bases of sex
(female) and national origin (Hispanic) when the Agency did not select
her for the GS-13 scientist position and deliberately misled her into
not applying for the specialist position.
Agency’s Final Decision
The Agency issued a final decision, concluding that it did not
discriminate against Complainant. Regarding the nonselection for the
scientist position, the Agency determined that Complainant established
prima facie cases of sex and national origin discrimination. However,
it found that the selecting official and interview panelists articulated
legitimate, nondiscriminatory reasons for not selecting Complainant.
Specifically, they averred that the selectee was more qualified than
Complainant because he had “more varied experience” and superior
leadership skills. The Agency found that Complainant did not establish
pretext, in that she did not show she was the plainly superior candidate,
or that the Agency’s proffered explanations were unworthy of credence.
As for management’s misleading her into not applying for the specialist
position, the Agency acknowledged that management had initially intended
to place all applicants for the positions into a common pool and select
the best-qualified applicants for the two vacancies from this common pool.
However, management testified that they subsequently abandoned their
common-pool plan after a union official raised concerns about certain
aspects of the hiring process in a June 25, 2008 email. Ultimately,
management only considered those applicants who were already classified
as Environmental Protection Specialists for the GS-13 specialist vacancy.
Because Complainant was classified as an Environmental Scientist, the
Agency did not ultimately consider her for the specialist position.
Complainant’s Appeal
On appeal, Complainant argued that the Agency erred in finding no
discrimination. Regarding the nonselection, Complainant argued that
she established pretext by showing she was the superior candidate.
Complainant highlighted a document titled “Application Listing
Report,” which purportedly showed Complainant ranked first by “total
score” for all applicants, and the selectee ranked near the bottom.
Complainant argues that she had the more scientifically rigorous education
and training compared to the selectee, and she had more experience than
the selectee.
Moreover, Complainant argued that management officials were not credible
in their testimony. The selecting official and interview panelists did
not adhere to relevant personnel policies and practices when they failed
to rank the applicants on their own and destroyed their handwritten
interview notes, and instead “compiling” the notes into a summary
of typed answers.
Regarding the Agency’s failure to consider her for the specialist
vacancy, Complainant maintained that she established a prima facie case
that only female applicants were deceived and obstructed by management
from applying for the specialist position. “The Agency presents
no evidence that any male applicants, interested in the [specialist]
position, were dissuaded from filing a separate application for the
[specialist] position.”
Complainant then argued that the Agency’s proffered reason (management
subsequently abandoned its plan to pool applications after receiving
an union email) was unworthy of credence because (1) the contents of
the union’s email did not pertain to the common pooling of applicants,
(2) the record contained no documentary evidence or email suggesting when
or under what circumstances management changed its mind, (3) management
gave inconsistent and contradictory testimony, (4) management did not
adhere to relevant personnel policies or practices.
The Commission’s Previous Decision
The Commission’s previous decision assumed that Complainant established
prima facie cases of discrimination, and determined that management
articulated legitimate, nondiscriminatory reasons for its actions.
The decision concluded that Complainant provided no persuasive argument
indicating any improprieties in the Agency’s findings. Therefore, the
Commission found that Complainant did not establish, by a preponderance
of evidence, that discrimination occurred.
CONTENTIONS ON RECONSIDERATION
In her request to reconsider, Complainant maintains that the previous
decision clearly erred in failing to consider the evidence supporting
her claim. Regarding her nonselection, Complainant argues that she
was the superior candidate for the scientist position. In particular,
Complainant argues that management impermissibly relied in part on
leadership examples that occurred after the selectee had applied for
the position, and were therefore illegitimate reasons. Complainant also
argues that the Agency failed to adhere to relevant personnel policies
and procedures when management destroyed their original interview notes
and failed to rank the applicants.
Regarding the Agency misleading her about the specialist vacancy,
Complainant argues the Agency’s reliance on the union email is not
credible and appears to be an after-the-fact explanation to justify why
it did not consider her for the position. Furthermore, the previous
decision erred in crediting management’s testimony because such a
change in its applicant pool procedures would constitute a failure to
adhere to merit system principles.
ANALYSIS AND FINDINGS
As indicated above, the Commission may, in its discretion, grant
a request to reconsider a previous Commission decision where the
requesting party demonstrates that the appellate decision involved a
clearly erroneous interpretation of material fact or law. “A request
for reconsideration is not a second appeal to the Commission.” Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110), at 9-17 (Nov. 9, 1999).
Here, Complainant essentially raises the same arguments that she had
previously made on appeal. Upon review, we determine that the previous
decision did not clearly err in finding that Complainant could not
establish pretext on the bases alleged.
Nonselection Claim
To prevail in a disparate treatment claim, 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 Construction Co. 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 804 n.14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory 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). Complainant can do this
directly by showing that the proffered explanations are unworthy of
credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 256.
Complainant can also establish pretext by showing that her qualifications
are “plainly superior” to those of the selectee. Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981).
We determine that the previous decision did not clearly err in determining
that Complainant did not prove that the Agency’s explanation for
Complainant’s nonselection was pretextual. Complainant maintained
that the document “Applicant Listing Report” established that she was
the plainly superior candidate because her name was listed at the top of
the document, while the selectee’s was listed second from the bottom.
Upon review, however, the Commission cannot clearly infer Complainant’s
superiority from this document. The document does not show the actual
“total score” of the applicants on the list, nor does Complainant
explain what the handwritten column labeled “key #” stands for.
A reasonable fact finder could interpret this document to be the
equivalent of a “best-qualified” list to identify the top applicants
to interview, based on their stated knowledge, skills, and abilities.
We also find that management’s failure to rank the applicants
or preserve their original interview notes are not dispositive in
establishing pretext, and therefore do not constitute clear error on
the Commission’s part. For example, in Elliott v. General Services
Administration, EEOC Appeal No. 0120080563 (July 17, 2009), the
complainant challenged an EEOC Administrative Judge’s (AJ) reliance
on the selecting official’s interview notes, because the selecting
official regularly rewrote his original interview notes a few days after
each interview and destroyed the originals. The Commission upheld the
AJ’s decision to rely on such evidence, because there was no clearly
contradictory evidence.
Here, Complainant does not present any clearly contradictory evidence
to question the veracity of the summarized interview notes. Moreover,
the record included other evidence from the selecting and interviewing
officials, including their own sworn narrative testimonies, and the
applications of Complainant and selectee.
The fact that management may not have adhered to merit system principles
does not, by itself, suggest that management did so because of either
Complainant’s sex or national origin. An employer’s business
decision cannot be found discriminatory simply because it appears that
the employer acted unwisely, or that the employer’s decision was in
error or a misjudgment.
Regarding not being considered for the specialist vacancy, we find
that Complainant did not establish that she was subjected to disparate
treatment on the bases of sex or national origin. The testimony suggests
that both males and females were initially notified by management that
applicants would be pooled together. It was Complainant’s burden, not
the Agency’s, to present relevant comparator evidence that showed that
male or non-Hispanic applicants were treated better than Complainant, in
that they were subsequently notified by management about the abandonment
of their common-pool plan. The testimony of Agency officials suggest that
they failed to notify all applicants about this change in processing.
Therefore, although Complainant may have established that she was
subjected to an adverse employment action in that she was “deceived,”
she did not show that she was treated any differently than the other
applicants, who also believed at the time that they would be considered
for both positions, but were ultimately not considered by management.
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120112037 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
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
__2/8/12________________
Date
2
0520110654
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110654