Carl Frazier,
Complainant,
v.
Tom Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120083270
Agency No. RMA-2003-00084
DECISION
On August 28, 2006, complainant filed an appeal from the agency's August
9, 2006 final action concerning his 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.
For the following reasons, the Commission REVERSES the agency's final
action.
BACKGROUND
On January 4, 2003, complainant filed an EEO complaint wherein he claimed
that he was discriminated against on the bases of race (African-American)
and in reprisal for his previous EEO activity under Title VII when he
was not selected for the position of Risk Management Specialist, GS-13.
At the conclusion of the investigation, complainant was provided 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 action pursuant to 29 C.F.R. §
1614.110(b). The agency determined that complainant failed to prove
that he was subjected to discrimination as alleged.
The record indicates that complainant worked for the agency's Risk
Management Agency from approximately March 1990 to June 2001. Complainant
subsequently resigned from the agency. On May 12, 2002, he submitted an
application for the position of Risk Management Specialist under Merit
Promotion Announcement RMA-KC-10-2002. There were a total of four
vacancy announcements for the Risk Management Specialist positions.
The candidates were recruited at the GS-5/7 and GS-12/13 grade
levels. Complainant was rated as qualified for a position at the GS-13
grade level, he was placed on the promotion certificate, he interviewed
for the position, and he was not selected.
The record reveals that two panels were formed to interview candidates
for the positions. There are no written records from the interview
process. The panels were composed of a supervisor, two staff members,
and a Human Resources employee who attended the interview as an EEO
observer. One panel interviewed applicants for the GS-5/7 positions
and the other panel interviewed candidates for the GS-12/13 positions.
The candidates were rated either highly qualified, middle qualified,
or least qualified. One of the staff members stated that complainant
was rated as middle qualified. The Chief of the Policy Development
and Underwriting Standards Branch reviewed the panels' results and then
recommended candidates for selection.
The selecting official was the Director of the Product Development
Division. He stated that he authorized the vacancy announcement for the
position, provided input into the panel process, requested and received
recommendations from his Branch Chiefs regarding selections, and signed
letters advising applicants of their nonselection. According to the
Director, the position at issue was a Risk Management Specialist, and the
position title existed in three different branches within the division.
The Director stated that the agency was attempting to fill multiple
positions within the three branches. There were 28 applicants under
the four vacancy announcements, four of whom, including complainant,
are African-American. Nineteen candidates qualified for recruitments
at the various grade levels. Thirteen individuals were interviewed for
the positions at the GS-12/13 levels. Four applicants were selected for
the GS-12/13 positions and the agency states that three of the selectees
are White and one is believed to be White.
The quality ranking factors listed in the position description included:
1. Ability to establish and maintain successful working relationships
with educational and private sector representatives;
2. Ability to lead efforts in evaluating complex and varied information
and developing solutions or recommended courses of action;
3. Ability to present findings, ideas and recommendations orally and in
writing; and
4. Knowledge of agricultural commodities and practices.
Complainant stated that his experience included over sixteen years of
crop insurance knowledge and five years as an accountant in this area.
According to complainant, he informed the interview panel that he had
over five years of auditing experience that includes analyzing data.
According to the Chief of the Policy Development and Underwriting
Standards Branch, none of the interview questions specifically focused
on crop insurance. He stated that the questions addressed a candidate's
communication skills and ability to analyze data and formulate solutions.
He claimed that the panel members were seeking individuals who could
resolve complex insurance problems and conduct analysis. The Director
stated that although he does not recall how the interview panel rated
the applicants, the individuals selected were identified as the best
qualified by the interview panel.
The agency determined that complainant established a prima facie case of
race discrimination. The agency also determined that it articulated a
legitimate, nondiscriminatory rationale for its selections. The agency
noted that the Chief stated that the selectees were chosen rather than
complainant because their skills and qualifications fit the agency's
needs. The Chief further stated that the selectees gave strong responses
to the questions concerning their qualifications and work experience
in terms of their ability to do the job. With regard to complainant's
claim of pretext, the agency noted that complainant claimed that he
possessed superior credentials and that it failed to send him the
interview questions in advance as it did with the other applicants.
The agency rejected these contentions. The agency found that it
ultimately sent complainant the interview questions and provided him with
a second interview. The agency also found that the two staff panelists
did not rate complainant as being highly qualified after the interview.
The agency noted that the applications of two of the selectees showed
they were very qualified as their backgrounds addressed the qualifying
rating factors listed in the position description.
The agency determined that complainant failed to establish a prima facie
case of reprisal. The record reveals that complainant had previous EEO
activity as he had filed three EEO complaints prior to his nonselection.
The agency determined that there was an insufficient temporal link
between the most recent complaint of June 30, 2001, and the October 10,
2002 notification to complainant that he had not been selected for the
relevant position.
On appeal, complainant contends that he is limited in presenting his
argument because no rating and ranking documents from the interview
panel are in the record. Therefore, complainant states he is unable
to review the scores and prove that he was more qualified than the
other candidates. Complainant claims that only less qualified White
candidates were selected. Complainant contends that the agency originally
told him there were no interview questions. Complainant argues that the
agency ultimately provided him with the interview questions and scheduled
another interview only after he learned that all of the other applicants
had been provided with the questions in advance. Complainant notes that
the agency stated that they did not provide the questions because they
could not reach him, yet during the same time period they were able to
reach him to set the date and time of his initial interview.
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 EEOC Management
Directive 110, 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). Proof of a prima facie case
will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
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).
The record shows that the selectees for the GS-12/13 positions (White)
were outside of complainant's protected class. We therefore find that
complainant has established a prima facie case of race discrimination.
The Commission finds that the agency failed to provide a legitimate,
nondiscriminatory reason for complainant's nonselection. The record does
not contain the rating sheets that were, according to agency officials,
completed by the interview panel in its evaluation of the candidates.
Although the relevant officials explained that the selectees were
chosen based on the fact that their skills and qualifications fit the
agency's needs, this explanation offers little in the way of specifics.
We find that the agency failed to set forth, with sufficient clarity,
reasons for complainant's nonselection such that complainant has been
given a full and fair opportunity to demonstrate that the agency's
reason was pretextual. See Parker v. United States Postal Service, EEOC
Request No. 05900110 (April 30, 1990); Lorenzo v. Department of Defense,
EEOC Request No. 05950931 (November 6, 1997).
Based on the record, complainant appears to possess similar qualifications
and experience as the other selectees.1 The agency's explanation for
choosing these selectees rather than complainant is not sufficiently
detailed to provide complainant the opportunity to demonstrate that those
reasons were a pretext for discrimination where complainant possesses
at least the same qualifications. The record contains no elaboration
of how the selectees demonstrated greater proficiency than complainant
with regard to their communication skills, ability to analyze data,
and ability to resolve complex insurance problems. The record reveals
that complainant was a staff accountant for eleven years with the agency.
Complainant stated in his application that he analyzed data, led financial
reviews, reviewed the work of others, and communicated with a variety
of private and governmental entities.
In light of complainant's qualifications and the agency's failure
to provide a sufficient articulation of its reasons for not selecting
complainant for the position in question, we find that the agency failed
to overcome complainant's prima facie case of race discrimination.
Therefore, the Commission finds that complainant has established his
claim of race discrimination when he was not selected for the GS-12/13
Risk Management Specialist position. Due to our finding of race
discrimination, we need not make a finding concerning whether complainant
was discriminated against in reprisal for his prior EEO activity since
any finding regarding discrimination based on reprisal would not affect
the final remedy.
CONCLUSION
Accordingly, the Commission REVERSES the agency's final action finding
no discrimination based on race and the agency shall comply with the
Order herein.
ORDER
1. Within 60 days of this decision becoming final the agency shall
offer complainant the position of Risk Management Specialist, GS-13, or a
substantially equivalent position at the agency's Risk Management Facility
in Kansas City, Missouri, or at an installation of complainant's choice.
Complainant shall be given 15 days from receipt of the offer within which
to accept or decline the offer. Failure to accept the offer within the
15-day period shall be considered a declination of the offer, unless
complainant can show that circumstances beyond his control prevented a
response within the time limit.
2. Within 60 days of the date this decision becomes final, 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 relevant information
requested by the agency. If there is a dispute regarding the exact
amount of backpay and/or benefits, the agency shall issue a check to
complainant for the undisputed amount within 60 days of the date the
agency determines the amount it believes to be due. 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. Within 180 days of the date this decision becomes final, the agency
shall provide eight hours of EEO training to the responsible agency
officials regarding their obligations under Title VII. If any of the
responsible agency officials are no longer employees of the agency,
then the agency shall furnish documentation of their departure date(s).
4. Within 180 days of the date this decision becomes final, the agency
shall consider taking appropriate disciplinary action against the
responsible agency officials. The agency shall report its decision to
the Compliance Officer, referenced herein. 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 any of the
responsible agency officials have left the agency's employment, then
the agency shall furnish documentation of their departure date(s).
5. The agency shall undertake a supplemental investigation to determine
complainant's entitlement to compensatory damages under Title VII. The
agency shall give complainant notice of his right to submit objective
evidence (pursuant to the guidance given in Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective
evidence from complainant in support of his request for compensatory
damages within 45 days of the date complainant receives the agency's
notice. No later than 90 days after the date that this decision becomes
final, the agency shall issue a final decision addressing the issue of
compensatory damages. The final decision shall contain appeal rights to
the Commission. The agency shall submit a copy of the final decision to
the Compliance Officer at the address set forth herein.
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 (G0900)
The agency is ordered to post at its Risk Management Agency facility
in Kansas City, Missouri copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (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 ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/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 (K1208)
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 (M1208)
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), 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 (R0408)
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 (Z1008)
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 4, 2009
__________________
Date
1 The investigative record contains the job applications of two of the
selectees but it is not clear whether the applications of the other two
selectees are included.
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2
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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