Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency. Appeal No. 0120132107 Agency No. OCFO-2011-00564 DECISION On May 13, 2013, Complainant filed an appeal from the Agency's April 25, 2013 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 REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency met its obligation to articulate a legitimate, nondiscriminatory reason for Complainant's non-selection for the GS-0503-07 Financial Management Assistant position. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0503-06 Financial Management Assistant at the Agency's National Finance Center, Government Employees Services Division, Payroll Processing Branch, Section IV, in New Orleans, Louisiana. On February 22, 2011, Complainant applied for the GS-0503-07 Financial Management Assistant position, advertised under internal job announcement number NFC-11-073/DS-420485. There were two vacancies - one in Section IV and one in Section I. The Section IV Supervisor (SO1) was the selecting official for the Section IV vacancy and the Section I Supervisor (SO2) was the selecting official for the Section I vacancy. On March 11, 2011, Human Resources (HR) issued a certificate of eligibles listing the nine candidates who were best qualified for the position. Complainant was on the certificate. SO1 and SO2 jointly interviewed each candidate on the certificate. On March 28, 2011, SO1 selected Selectee 1 (SE1 - Caucasian,1 lighter complexion, no known disability, 30 years of age, no prior EEO activity) for the Section IV vacancy and SO2 selected Selectee 2 (SE2 - Caucasian, lighter complexion, no known disability, 28 years of age, no prior EEO activity) for the Section I vacancy. At the time of the selections, SE1 worked as a GS-0503-06 Financial Management Assistant in Section IV and SE2 worked as a GS-0503-06 Financial Management Assistant in Section I. The record contains SO1 and SO2's March 28, 2011 written justifications of the selections. Regarding SE1, SO1 wrote the following: [SE1] was selected for the Financial Management Assistant, GS-7, position in the Payroll Processing Branch (PaPB). As part of the selection process, all applications were reviewed and each candidate was interviewed. It was determined that based on her extensive knowledge, expertise and experience in the payroll/personnel arena, she was the best-qualified candidate. The selectee has a background in payroll and accounting and provided a superior interview as compared to the other applicants. ROI, at 102. Regarding SE2, SO2 wrote the following: [SE2] was selected for the Financial Management Assistant, GS-7, position in the Payroll Processing Branch (PaPB). As part of the selection process, all applications were reviewed and each candidate was interviewed. It was determined that based on her extensive knowledge, expertise and experience in the payroll/personnel arena, she was the best-qualified candidate. The selectee has a background in payroll and accounting and provided a superior interview as compared to the other applicants. Id. at 103. On August 4, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (dark complexion), age (50), and reprisal for prior protected EEO activity (filed an EEO complaint in December 2010) when it did not select her for the position. During the investigation, the Agency stated in response to the EEO Investigator's document request, "Any rating sheets used by selection panel - Not applicable. No evidence that a panel was conducted." Other than the written justifications cited above, the record contains no contemporaneous documentation - such as interview questions, interview notes, or rating sheets - related to SO1 and SO2's evaluation of the candidates. 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. 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 her to discrimination as alleged. Initially, the decision found that Complainant: (a) established a prima facie case of discrimination on the bases of age and reprisal; (b) established a prima facie case of discrimination on the basis of race for the Section I vacancy but not the Section IV vacancy; and (c) failed to establish a prima facie case of discrimination on the basis of color. Regarding the basis of race, the decision stated that SE1 - the selectee for the Section IV vacancy - was also African-American. Regarding the basis of color, the decision stated that nothing in the record denotes the skin color of the selectees. Next, citing the affidavits of SO1 and SO2, the decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Finally, the decision found that Complainant failed to show that the Agency's articulated reasons were a pretext for discrimination. CONTENTIONS ON APPEAL On appeal, Complainant argued that the Agency failed to preserve all the records having to do with the promotion and that, had those records been included, the weight of the evidence would have shown discrimination. Specifically, Complainant asserted that SO1 and SO2 did not provide the EEO Investigator with any interview notes or rating sheets. The Agency did not submit a statement or brief in opposition to Complainant's appeal. ANALYSIS AND FINDINGS 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 (EEO MD-110), at Ch. 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"). Non-Selection To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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 Constr. 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, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant's Prima Facie Case In the non-selection context, Complainant may establish a prima facie case of discrimination by showing that: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was not selected for the position; and (4) she was accorded treatment different from that given to persons otherwise similarly situated who are members outside of her protected group. EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002 (Sept. 18, 1996); Williams v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). Regarding her non-selection, the record reflects that Complainant has shown that: (1) she is African-American, has a dark complexion, and was 50 years of age; (2) she was on the list of best qualified employees referred to SO1 and SO2; (3) she was not selected for the position; and (4) SE1 and SE2, who are Caucasian, have lighter complexions, and were under 40 years of age, were selected for the position. Although the Agency's final decision stated that SE1 was African-American, we emphasize that the demographic information the Agency itself provided to the EEO Investigator reflected that SE1 was Caucasian. ROI, at 5, 101. Although the Agency's final decision stated that nothing in the record denotes the skin color of the selectees, we note that the record contains testimonial evidence from Complainant that the selectees have lighter complexions. Id. at 51-52. Moreover, we note that the record contains no testimonial or documentary evidence contradicting Complainant's testimony about the selectees' color. Therefore, we find that Complainant established a prima facie case of discrimination on the bases of race, color, and age. Agency's Legitimate, Nondiscriminatory Reason Once a complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253. The Supreme Court has described this burden as being met "if the [agency's] evidence raises a genuine issue of fact as to whether it discriminated against the [complainant]," and that "[t]o accomplish this, the [agency] must clearly set forth, through the introduction of admissible evidence, the reasons for the [complainant's] rejection." Id. at 254-55. Moreover, the agency must "frame the factual issue with sufficient clarity so that the [complainant] will have a full and fair opportunity to demonstrate pretext," with the adequacy of its evidence "evaluated by the extent to which it fulfill[ed] these functions." Id. at 255-56. The burden incumbent upon the agency to respond to a complainant's prima facie case with a legitimate, nondiscriminatory reason for its actions is a burden of production, not persuasion. Reeves, 530 U.S. at 142. While the agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded a complainant. Lorenzo v. Dep't of Def., EEOC Request No. 05950931 (Nov. 6, 1997); see also Woodward v. Dep't of Labor, EEOC Appeal No. 01970288 (Feb. 1, 2000) (agency failed to meet its burden of production with sufficient particularity when the selecting official's affidavit stated that the selectee was better qualified for the position because of her background, her superior experience in the field of interest, and her interview responses showing she had the perspective and attitude toward the position that would ensure success in the office). Upon review of the record, we find that the Agency failed to meet its burden of articulating a legitimate, nondiscriminatory reason for its actions. Specifically, we find that SO1 and SO2 failed to provide a specific, clear, and individualized explanation for Complainant's non-selection for the Section IV and Section I vacancies. Regarding Complainant's non-selection for the Section IV vacancy, SO1 averred: I felt the employee that I chose was better qualified based on the application and interview process, and the timeliness and accuracy of work assignments performed in the unit. I made the decision to select whom I felt was best qualified. Having previously occupied this position myself, I felt very qualified in making a judgment about which candidate was best suited to assume this important role ... [Complainant]'s candidacy for the vacancy would have been stronger were it not for the fact that she has demonstrated real problems in completing assignments more timely and accurately. She and I have had discussions about those deficiencies in her performance. ROI, at 56-57. Regarding Complainant's non-selection for the Section I vacancy, SO2 averred: The fact that [Complainant] was referred to us for an interview by HR suggests that she met the minimum qualifications for the job, but in my view she was on the bottom tier of the applicants for my position. I made a different selection that was ultimately approved ... Frankly, [Complainant] didn't get a very strong reference from [SO1] regarding her work ethics. It appears that, in her application, she might have exaggerated her capabilities. Id. at 60-61. We find that the above affidavit testimony is not sufficiently particularized or specific to permit Complainant to mount an evidentiary challenge to any of the explanations offered by the Agency for her non-selection. The affidavits set forth no objective facts to support its vague, generalized conclusions that the selectees were more qualified for the position. For instance, SO1's affidavit provided no specific examples of how or why SE1 was better qualified than Complainant based on the application, how or why SE1 was better qualified than Complainant based on the interview, and how or when Complainant did not complete her work assignments timely and accurately.2 Moreover, SO2's affidavit provided no specific explanation of how or why he deemed Complainant to be on the bottom tier of the applicants, what SO1 said about Complainant's work ethics, and how or where Complainant might have exaggerated her capabilities in her application. Given the lack of specific details, the Agency's explanations are insufficient to afford Complainant a meaningful opportunity to prove the explanations to be untrue. Based on the above, we find that the Agency failed to articulate a specific, clear, and individualized explanation for Complainant's non-selection, and consequently, Complainant was denied a fair opportunity to demonstrate pretext. See Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070124 (Nov. 14, 2011); Garcia v. Dep't of Homeland Sec., EEOC Appeal No. 01A32050 (Jan. 7, 2005), request for reconsideration denied, EEOC Request No. 05A50685 (Apr. 26, 2005); Young v. Dep't of the Treasury, EEOC Request No. 05940517 (Oct. 13, 1995). Thus, the Agency failed to rebut the inference of discrimination, which was created when Complainant established a prima facie case of race, color, and age discrimination, by articulating a legitimate, nondiscriminatory reason for its actions. Therefore, we find that the Agency discriminated against Complainant based on her race, color, and age when it did not select her for the GS-0503-07 Financial Management Assistant position.3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision. The Agency will comply with the Order below. ORDER Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision becomes final: 1. The Agency shall offer Complainant the position of GS-0503-07 Financial Management Assistant, or a substantially equivalent position, at the National Finance Center in New Orleans, Louisiana, retroactive to the date of her non-selection, on or about March 28, 2011. Complainant shall have fifteen (15) days from the date of the offer to accept or decline the position. If Complainant should decline the Agency's offer of a position, the date of her rejection shall be the end date for any back pay due Complainant. 2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages. 4. The Agency shall provide eight (8) hours of EEO training to SO1 and SO2 regarding their responsibilities under EEO laws. 5. The Agency shall consider taking appropriate disciplinary action against SO1 and SO2. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If SO1 or SO2 have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its National Finance Center in New Orleans, Louisiana copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 _4/29/15_________________ Date 1 Although Complainant averred that SE1 was African-American, the demographic information provided by the Agency stated that SE1 was Caucasian. ROI, at 5, 101. 2 We note that, for the October 2009 to September 2010 appraisal period, SO1 gave Complainant a Fully Successful summary rating and rated her either Meets Fully Successful or Exceeds Fully Successful on the critical elements of her position. ROI, at 253. 3 We need not make a finding regarding whether the Agency discriminated against Complainant based on her prior EEO activity because any finding of discrimination on that additional basis would not affect the final remedy. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132107 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132107