0120100839
02-22-2012
Mary H. Holmes, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Mary H. Holmes,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120100839
Agency No. MMS-09-0138
DECISION
On December 12, 2009, Complainant filed an appeal from the Agency’s
October 29, 2009, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
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 Land Law Examiner, GS-0965-11, in the Agency’s Minerals Management
Service, Adjudication Unit, in Jefferson, Louisiana. From September
11, 2008, through September 19, 2008, the Agency advertised for the
position of Program Analyst, GS-0343-12/13, in the Minerals Management
Service under Vacancy Announcement Numbers S-08-69 (external) and
MMSO-ANT-MM205373 (internal).1 The position description reveals that
the incumbent was responsible for lead responsibilities in continual
ongoing operational steps of the federal offshore mineral leasing process
(including calls for information, area identification, and proposed and
formal notices of lease sales) and analyzing and recommending optional
mineral leasing procedures in response to identified needs of the
government or industry. Report of Investigation (ROI), Exhibit 11.
Complainant applied to both announcements and was placed on the best
qualified list for both announcements. Complainant was interviewed
for the position by Person A (Selecting Official); however, she was not
selected for the position.
Complainant filed an EEO complaint dated February 20, 2009, alleging
that the Agency discriminated against her on the bases of race
(African-American) and age (54) when: on December 8, 2008, Complainant
was not selected for a GS-0343-12/13 Program Analyst position (Vacancy
Announcement S-08-69 and MMSO-ANT-MM205373) for which she made the best
qualified list and was interviewed.
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).
Complainant timely requested a hearing but subsequently withdrew her
request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).
In its decision the Agency concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged. The Agency
determined that Complainant failed to establish a prima facie case of age
discrimination since the person selected (the Selectee) was 54 years of
age at the lime of selection, only a little less than ten months younger
than Complainant.
The Agency determined Complainant did establish a prima facie case
of discrimination based on race. The Agency noted that Complainant
applied for the position at issue, was qualified, and was not selected.
The Agency noted that the Selectee (Caucasian) was someone not of
Complainant's protected class.
The Agency stated that the Selectee was chosen based on her interview,
her background experience, and references from supervisors. The Agency
noted that in her affidavit, Complainant argued that she is more qualified
than the Selectee and that the Selectee falsified her application.
The Agency stated that although Complainant had been a Land Law Examiner
(at varying grade levels) for approximately 12 years, and the Selectee
had been in the same position for approximately 22 months, more years
of experience does not necessarily make an individual more qualified to
meet the needs of the Agency. The Agency stated that while the Selectee's
prior work experience was different from Complainant's experience, at the
time of the selection they both were satisfactorily performing the same
job at the same grade level. The Agency stated there was no evidence
that the Selectee falsified her application as Complainant alleged.
The Agency determined Complainant did not show by a preponderance of
the evidence that the legitimate explanations provided by management
were a pretext for discrimination.
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”).
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). He must
generally establish a prima facie case by demonstrating that he 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 U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep’t 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 Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans Affairs, EEOC
Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).
Upon review, we find that the Agency articulated legitimate,
non-discriminatory reasons for its actions. Specifically, the Agency
stated that the Selectee was chosen because of her interview, her
background experience, and references from supervisors. In his affidavit,
Person A explained that the Selectee responded succinctly to interview
questions by demonstrating knowledge of oil and gas regulations as
they apply to the federal government. Report of Investigation (ROI),
Exhibit 8. Person A noted the Selectee had been an abstract title
examiner prior to joining the government and that the abstract business
is very legal and detail
oriented, requiring organization in order to perform those tasks in a
legal environment. Id. He stated that the Selectee was able to relate
her experience, education, and background with the questions being asked.
In contrast, he stated that Complainant did not communicate as well
as the Selectee, and responded with a generic response of "you know"
to many of his questions, making the assumption that he would understand
the work she did and the performance she had. Id. Person A noted that
Complainant did not directly answer the questions asked or give examples
of how her resume or background would best fit those questions. Id.
Person A explained that he consulted a couple of past supervisors about
the performance of Complainant and the Selectee. Person A stated that
the supervisors said that the performance of the Selectee was at a higher
level than that of Complainant. Id.
Person B, the Concurring Official, had no involvement in the interview
process; however, she discussed the candidates with Person A after
he reviewed the resumes and conducted interviews. Additionally, she
personally reviewed the resumes herself. Person B stated that from
meeting with Person A and reviewing the resumes of the candidates, it
was her understanding that: the Selectee was an articulate speaker;
she was a former title examiner; she had owned her own title company;
and, she was very familiar with the leasing process. ROI, Exhibit 9.
In her affidavit, Complainant stated that having worked with the Selectee
for two years she believed the Selectee’s communication skills
were lacking. ROI, Exhibit 7. Complainant stated that the Selectee
lied in her resume when she stated that she developed regulations.
Complainant also stated that she did not know if the Selectee had the
formal training for the position. Id. Complainant noted that previously
she had applied for two other Program Analyst positions under Person
A and was not selected. She said that the only difference in these
selections is that she is Black and those selected were White. Id.
When asked why she thought the non-selection was based on her age she said
she was “older and grayer.” Id. However, we note that Complainant
also stated that she thought that she and the Selectee were probably
near the same age. Id.
Upon review, we find that the Agency articulated legitimate,
non-discriminatory reasons for its actions. Specifically, the Agency
stated that the Selectee was chosen because of her interview, her
background and references from supervisors. Complainant has failed
to show that her qualifications were plainly superior to those of the
Selectee. With regard to Complainant's allegation that some of the
statements on the Selectee’s resume were false, we note that she has
no evidence to support her contention. Moreover, Person A states that
he did not have any reason to believe that the Selectee’s resume was
not correct. We find Complainant failed to show that the Agency’s
actions were a pretext for prohibited discrimination.
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination
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,
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
February 22, 2012
__________________
Date
1 There was only one vacancy, but it was announced both externally
and internally.
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01-2010-0839
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100839