0120102686
06-13-2012
Mary A. O'Neal, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Mary A. O'Neal,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120102686
Agency No. HHS-IHS-0291-2009
DECISION
On June 3, 2010, Complainant filed an appeal from the Agency's April 30, 2010 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 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 an Administrative Officer, GS-13, at the Agency's work facility in Crownpoint, New Mexico. On June 5, 2009, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the bases of sex (female), age (60) and in reprisal for her prior protected EEO activity when on April 9, 2009, Complainant was informed that she was not selected for the position of Health System Administrator, GS-670-14, for the Crownpoint Service Unit. 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 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 Agency determined that Complainant failed to prove that it subjected her to discrimination as alleged. Final Agency Decision at 9. The record reveals that the selectee for the position at issue was Complainant's direct supervisor. Id. at 5. The selectee was a 51 year old male with no prior EEO activity. Id. Complainant applied for the position and made the Best Qualified List. Id. at 6. The Agency determined that Complainant established a prima facie case of sex, age and reprisal discrimination. Id. With regard to the selection process, the selecting official stated that a panel was convened to interview the candidates. Id. Each applicant was asked the same questions and allowed the same amount of time to respond. Id. Upon conclusion of the interviews, the panel members totaled their scores for each applicant. Id. at 7. The panel recommended the selectee for the position at issue.1
One panel member explained that the selectee elaborated more in his responses than Complainant and incorporated his experience, knowledge and education to explain why he was the best candidate. Id. This panel member indicated that in contrast, Complainant provided average responses and did not elaborate or qualify any of her answers to justify a higher score. Id. Another panel member stated that she did not recommend Complainant because she did not display a people personality, seemed angry, lost focus, strayed from the questions and was not direct. Id. A third panel member explained that she recommended the selectee because he explained himself very well in contrast to Complainant who talked too much and took too long in her responses. Id. Further, the panel member stated that Complainant did not respond to the question about a vision for the facility. Id. An additional panel member stated that Complainant spent most of her time addressing the first question and only provided brief responses to the other questions. Id. She stated that Complainant failed to explain how she was qualified for the position. Id. In contrast, this panel member noted that the selectee responded with specific details. Id. Another panel member stated that Complainant did not focus on the question asked, got off track, and although she talked very much, she did not speak to the point. Id. An additional panel member stated that he recommended the selectee for the position even though he gave Complainant a higher rating on her performance interview. Id.
The selecting official maintained that he chose the selectee because he was recommended by the interview panel and was considered the best qualified applicant. Id. According to the selecting official, the selectee had done an excellent job as the Acting Health System Administrator. Id. at 7-8. Further, the selecting official recognized the selectee's work in organizing the staff and other resources and also in targeting other major priorities. Id. at 8. The selecting official noted that the Health Board presented a letter of recommendation for the selectee. Id. The Agency determined that it articulated legitimate, nondiscriminatory reasons for its selection.
Complainant attempted to establish that the Agency's explanation was pretext by arguing that her experience and qualifications should have been the determinative factors in the selection process. Id. Complainant claimed to have extensive experience and qualifications. Id. However, the Human Resources Officer asserted that having more experience did not necessarily equate to being better qualified for the position. Id. The Agency stated that the selectee also had extensive experience. Id. The Agency noted that nine of the eleven panel members who provided affidavits stated that they were not aware of Complainant's prior EEO activity. Id. The selecting official stated that although he was aware of Complainant's prior EEO activity, he did not engage in reprisal when he did not select Complainant. Id. The Agency determined that Complainant failed to establish that the Agency's explanation for her non selection was pretextual. Id. Thereafter, Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We shall assume arguendo that Complainant has established a prima facie case of discrimination on the alleged bases. The selecting official explained that his choice of the selectee rather than Complainant was based on the recommendation from the interview panel and the selectee's excellent performance as the Acting Health System Administrator. The selecting official noted the selectee's work as the Acting Health System Administrator in organizing the staff and other resources and also in targeting other major priorities. The selecting official further noted that the selectee had demonstrated the ability to work with people whereas he found it difficult to work with Complainant. He explained that if Complainant had ranked more competitively for the position, it would have been difficult to convince the Health Board to hire her because she is not someone who knows how to resolve issues at the lowest possible level.
Several members of the interview panel expressed the opinion that the selectee was the best qualified candidate for the position. It was noted that the selectee explained why his experience, knowledge and education established him as the best candidate. The selectee was credited with providing specific details in his responses. Further, the Health Board submitted a letter of recommendation for the selectee. With respect to Complainant, the panel members indicated that she did not focus on the questions asked, got off track and did not explain what she would do to improve the facility. One panel member stated that Complainant seemed angry and lost focus. We find that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant.
In a non selection case, pretext can be demonstrated in a number of ways, including a showing that Complainant's qualifications are observably superior to those of the selectee. See Bauer v. Bailor, 647 F. 1037, 1048 (10th Cir. 1981); Williams v. Department of Education, EEOC Request No. 05970561 (August 6, 1998). Complainant focused primarily on her experience in arguing that she was the most qualified candidate for the position of Health System Administrator. Complainant had been working for seven years as an Administrative Officer, GS-0340-13, at the Crownpoint facility. Additionally, Complainant stated that she was the Chief and Deputy Chief of the Agency's Social Services/Mental Health Programs for over nine years. She stated that she was the Executive Director of First Nations, an urban Indian Health Program, for two years. Complainant noted that she was Chief of hospital social services programs for about three years. She also worked three years with the national level of the Save The Children Federation, an international health program. She maintained that she has over 25 years experience managing health care programs. Complainant argued that she had more extensive qualifying experience as a manager than the selectee. Complainant noted that all of the other applicants were younger than she was.
The record reveals that at the time of his selection, the selectee had served for ten months on a detail as the Acting Health System Administrator (Chief Executive Officer) at the Crownpoint Healthcare facility. He had also served for several years as the Director of the Division of Administrative Services. Additionally, the selectee worked with the Agency for five and a half years as a Public Health Analyst and six years as an Employee Development Specialist. Upon review of their respective applications, we find that Complainant's qualifications, while clearly impressive, were not observably superior to those of the selectee. It is apparent that the selectee's interview performance was more impressive than that of Complainant. In light of that and the selectee's strong performance while serving a detail as the Acting Health System Administrator, we find that Complainant has failed to establish that the Agency's stated reasons for its selection were pretext intended to mask discrimination.
CONCLUSION
The Agency's determination that no discrimination occurred 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
June 13, 2012
__________________
Date
1 The panel's score rankings rated the selectee at 2.7 and Complainant was rated fourth among the five applicants at 2.0. The selectee was offered the position but declined to accept. The selecting official stated that even if he did not choose the selectee, the two other candidates ahead of Complainant would have been next in line for consideration. He noted that the Health Board decided to re-announce the position.
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0120102686
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102686