0120111152
12-12-2012
James R. Williams, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
James R. Williams,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120111152
Agency No. OS-09-0423
DECISION
On December 15, 2010, Complainant filed an appeal from the Agency's November 15, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Foreman (Work Leader), WL-4749-10, at the Agency's Facilities Management and Services Division, National Business Center (NBC) in Washington, DC. The Agency posted two separate vacancy announcements for a Building Management Specialist, GS-1176-07, one for status candidates (Merit Promotion Eligibles) (EHRM0247335JAK) and one for United States Citizens (EHRM0247386JAK). The vacancy announcements were posted on March 16, 2009, and closed on March 30, 2009. Complainant applied for the merit promotion vacancy. The Agency created a panel composed of three people to review the applicants' resumes and to conduct interviews. The panel consisted of Panel Member 1 who was Complainant's first-level supervisor, Panel Member 2 who was Complainant's second-level supervisor and the Selecting Official, and Panel Member 3. Five applicants, including Complainant were referred to the Competitive Merit Promotion Certificate of Eligibles. Three applicants, including the Selectee were referred under the Competitive Certificate of Eligibles. The Selectee was chosen for the position and hired effective July 5, 2009.
Complainant filed an EEO complaint dated October 29, 2010, alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when: on June 12, 2009, he learned he was not selected for the position of Building Management Specialist, GS-1176-07 (Full Performance Level GS-12), advertised under Vacancy Announcement Number EHRM02473353AK.
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.
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").
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, he 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; Fumco 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 his 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).
In the present case, the Agency has articulated legitimate, non-discriminatory reason for its actions. Specifically, the Agency stated that the Selectee was chosen because of her resume, her interview, and her experience. Panel Member 1 noted that the Selectee was rated the top candidate on each of the panel members' scoring sheets and that Complainant did not even rank as one of the top three candidates. He noted the Selectee had good computer skills, very good writing skills, interviewed very well, and was well organized. Panel Member 1 noted the Selectee worked for the private sector most of her career for different agencies as a contractor. Panel Member 1 stated the Selectee was an expert on custodial contracting and overseeing custodial contracts. Panel Member 1 also noted that Complainant's experience was mainly in plumbing, while the Selectee showed a wider range of experiences and skills, including computing. In their affidavits, all three panel members stated that Complainant interviewed poorly. Panel Member 3 stated that during the interview Complainant was nervous and did not always give clear answers to the interview questions. Additionally, Panel Member 3 noted that there were gaps in Complainant's resume while the Selectee's resume was the best of all the applicants.
In the present case, Complainant failed to show that his qualifications were plainly superior to those of the Selectee. Moreover, we note that Complainant stated his interview "went okay, but it was not [his] best interview." Upon review, we find Complainant failed to show that the Agency's actions were a pretext for discrimination.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
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
December 12, 2012
__________________
Date
2
01-2011-1152
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111152