0120122544
10-26-2012
William C. Winter, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
William C. Winter,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122544
Agency No. 0705-0006-2011103973
DECISION
On May 18, 2012, Complainant filed an appeal from the Agency's May 4, 2012, 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. 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.
ISSUE PRESENTED
The issue presented is whether the Agency's final decision properly concluded that Complainant failed to prove that the Agency unlawfully discriminated against him when it did not select him for a Public Affairs Specialist position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO Program Assistant, GS-7, in the Agency's Office of Resolution Management in Los Angeles, California. Complainant has worked with the Agency since July 2007.
Complainant applied for a GS-7/9/11/12 Public Affairs Specialist position. According to the position description, Public Affairs Specialists identify Agency issues that are of interest to the public and employees. Public Affairs Specialists write, develop materials for employee and public communications, research information, and write news and feature releases on a variety of subjects pertaining to the Agency and veterans. Additionally, Public Affairs Specialists assist in marketing these matters to appropriate audiences beyond Agency employees. Further, Public Affairs Specialists establish and maintain effective working contacts with new media, veteran service organizations, and of other allied agencies.
The Agency deemed Complainant qualified for the position but selected a Caucasian female who was born in 1982 for the position at the GS-11 level. On October 11, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), and age (born 1956) when on or about June 10, 2011, the Agency did not select Complainant for the position of Public Affairs Specialist GS-7/9/11/12.
In an investigative statement, Complainant stated that his job duties included opening and reviewing mail, filing, sending letters answering telephone calls, greeting walk-in guests, and assisting EEO personnel. Complainant stated that he applied for a Public Affairs Specialist position in Los Angeles, but the Agency later informed him that someone else was chosen for the position. Complainant stated that he believed that his qualifications for the position were good, but he had no knowledge about the interview and selection process because he did not hear from the Agency until he contacted the Agency to learn if anyone had been selected for the position. Complainant also stated that he was a Navy journalist for eight years, previously served as a Public Affairs Specialist for two other federal employers, and served a one-year temporary term as a GS-11 Public Affairs Specialist.
The Selecting Official (Caucasian male born in 1943) stated that he was given referral certificates for individuals at the GS-7, GS-9, and GS-11 levels, but he decided to select at the GS-11 level because he wanted an individual who had a certain degree of experience. He further stated that Complainant was on the referral certificate at the GS-11 level, but he did not interview Complainant.
The investigator asked the Selecting Official why Complainant was not interviewed, and the Selecting Official explained that he did not know or recall why Complainant was not interviewed, although he believed that he attempted to contact Complainant for an interview.
The Selecting Official stated that he selected the selectee for the position because of her steady record of employment, educational abilities, and recommendation from her supervisor. He further stated that he believed that the selectee was better qualified than Complainant because of her experience and education.
The Selecting Official further stated that Complainant's only qualifying experience in public affairs was a one-year stint in 2004 in the internal information division of an organization, but the position at issue did not involve internal information dissemination. He also stated that although Complainant had a GS-9 position at the Forest Service, his work experience was "rather sketchy," and his previous full-time job was in marketing, not public affairs. ROI, p. 106. The Selecting Official stated that Complainant had only one year of experience at the GS-11 level, eight months experience at the GS-9 level, and his online newsletter did not reflect the quality of work that the Agency wanted. The Selecting Official also stated that Complainant's current position was at a "relatively low" GS-7 level.
The Human Resources Specialist (African-American female born in 1961) stated that Complainant was on the referral certificate for the position at the GS-11 level, but she did not know if interviews were conducted for the position. The Human Resources Specialist stated that Agency policy provides that the Agency must interview all or none of the best-qualified candidates referred for each certificate unless circumstances do not permit it to do so.
The Director of the Washington, D.C. Regional Office of Public Affairs (Director) (Caucasian female born in 1968) stated that she was a member of the interview panel. She stated that she had no role in deciding who was interviewed and did not know if Complainant was on the selection certificate. The Director stated that three candidates were interviewed via videoconference.
The Public Affairs Specialist (PA Specialist) (Caucasian female born in 1955) stated that she was a member of the interview panel. The PA Specialist stated that she reviewed all the resumes and rated the candidates based on qualifications. The PA Specialist stated that her rating was subjective, and she rated each applicant for each grade of the position at issue. She stated that Complainant was not interviewed for the position, and she did not recall who she believed was most qualified. She stated that she believed that the Selecting Official said that the top three applicants would be interviewed for the position. The PA Specialist further stated that the selectee had excellent qualifications, and the selectee's experience in social media was an important component of the selection process as well as her experience writing for high-level government officials.
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). On April 18, 2012, Complainant requested a final Agency decision. In accordance with Complainant's request, 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.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency violated its personnel policy when it failed to interview him because the policy states that if one applicant is interviewed from the certificate, all applicants must be interviewed. Complainant further argues that social media experience was not listed as a selection factor in the vacancy announcement, although the Agency asserts that it was a reason the selectee was chosen for the position. Complainant further asserts that the Selecting Official could have contacted him for an interview because he knew where Complainant worked and Complainant's telephone number, home address, and e-mail address. In its reply, the Agency contends that Complainant's appellate statement does not offer any evidence to support his claim that he was subjected to unlawful discrimination and requests that the Commission affirm its final decision.
STANDARD OF REVIEW
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 (MD-110), at Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
Non-Selection
Claims of discrimination in disparate treatment cases are generally examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). In the context of a claim that a complainant was not subjected because of his age, a complainant must first show: (1) he applied for and met the basic qualifications for a vacancy for which the agency was seeking applicants; (2) he was rejected despite his qualifications; and (3) another person not of his protected class but similarly situated as to position, grade, supervisor, and circumstances, was selected for the position. EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915 002, at n.4 (Sept. 18, 1996); Williams v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998).
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 Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts to the complainant to demonstrate by preponderant evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is his obligation to show that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
In this case, Complainant is a Caucasian male born in 1956. Complainant applied for and was deemed qualified for a Public Affairs Specialist position, but the Agency selected a Caucasian female who was born in 1982 for the position. Consequently, we find that Complainant established a prima facie case of sex and age discrimination. Complainant and the selectee are the same race, and Complainant has not provided any evidence that creates an inference of race discrimination. Therefore, we find that Complainant failed to establish a prima facie case of race discrimination.
We further find that the Agency articulated legitimate, non-discriminatory reasons for not selecting Complainant. Specifically, the Agency stated that the selectee was chosen for the position because of her steady record of employment, education, social media experience, and recommendation from her supervisor. The Agency further stated that although it could not explain why Complainant was not interviewed, he was not as qualified as the selectee because Complainant's only qualifying experience in public affairs was a one-year stint in an organization's internal division, Complainant's previous full-time job was not in public affairs, Complainant's current position was only at the GS-7 level, and Complainant only had one year of experience at the GS-11 level and eight months experience at the GS-9 level.
Complainant argues that the Agency violated its personnel policy when it failed to interview him because the policy states that if one applicant is interviewed from the certificate, all applicants must be interviewed. The Agency acknowledges that it departed from the personnel policy when it failed to interview Complainant. The Selecting Official explained that he did not know or recall why Complainant was not interviewed, although he believed that he attempted to contact Complainant for an interview. Upon review, we conclude that although it is clear that the Agency should have interviewed Complainant for the position, there is no evidence that the Agency's failure to do so was based on Complainant's age, sex, or race.
Moreover, even if Complainant had been interviewed, we do not find that his qualifications were plainly superior to the qualifications of the selectee. Specifically, Complainant has a Bachelor's Degree in Radio/TV Communications and Associate of Arts Degree in Graphic Arts and Fine Arts. Complainant worked as a GS-7 EEO Program Assistant for the Agency since July 2007, a Traffic School Operator/Instructor since June 2006, an online editor for his personal internet newspaper since 1996, a Marketing Specialist for eight months in 2005 and 2006, a GS-11 Public Affairs Specialist for the U.S. Air Force for one year, and a GS-9 Public Affairs Specialist for ten months in 2002 and 2003. The selectee has a Master's Degree in Public Administration and a Bachelor's Degree in Political Science. The selectee worked with the Government Accountability Office (GAO) for over one year as a level PE-IIA Senior Communications Analyst and with the GAO as Communications Analyst for over two years. At GAO, the selectee designed, implemented, and maintained two GAO websites and supported teams in written and oral communication. Additionally, the selectee worked with a nonprofit organization for one year as an Assistant Program Coordinator and with the United Nations Information Center as a Government Relations Intern in 2004.
Complainant further contends that social media experience was not listed as a selection factor in the vacancy announcement, although the Agency asserts that it was a reason the selectee was chosen for the position. However, according to the position description, Public Affairs Specialists establish and maintain effective working contacts with "new media." Moreover, one of the "Knowledge, Skills, Abilities and Other Characteristics" (KSAO) rating factors for the position was "broad experience developing and disseminating a wide range of information and data concerning the nature and objectives of Agency programs, employing all types of media, including radio, television, newspapers, magazines, professional and scientific journals, pictures, posters, exhibits and the Internet." ROI, p. 137. As such, the ability to communicate through social media may fairly be considered a component of the Public Affairs Specialist position. We therefore find that Complainant failed to prove that the Agency's articulated reasons for his non-selection were pretext for unlawful discrimination, and consequently conclude that the final Agency decision properly found no discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final Agency decision.
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
October 26, 2012
Date
2
0120122544
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122544