0120111058
09-07-2012
Carolyn Stubblefield, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Minerals Management Service), Agency.
Carolyn Stubblefield,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Minerals Management Service),
Agency.
Appeal No. 0120111058
Agency No. MMS20090515
DECISION
On November 23, 2010, Complainant filed an appeal from the Agency's October 26, 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 (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 deems the appeal timely and accepts it for de novo review 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 Secretary, GS-318-07 with the Bureau of Ocean Energy Management, Regulation and Enforcement, Texas Audit and Compliance Unit located in Houston, Texas. On February 9, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (dark brown), age (48), and reprisal (prior protected EEO activity) when: (1) on April 20, 2009, she was informed that she was not eligible for a GS-560-7/9 Budget Analyst position (Vacancy Announcement MMSW-CM-09-MM235093) and for a GS-560-7 Budget Analyst position (Vacancy Announcement MMSW-CM-09-MM235092); and (2) on May 18, 2009 and continuing through January 2010, her supervisor (S1) and the Human Resources Director of the Western Administrative Service Center delayed her request for a desk audit.
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). 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.
FACTUAL BACKGROUND
Complainant alleged that following an inquiry to the Human Resources Department, she learned that her Budget Analyst application was not referred to the selecting official for selection because she did not include the required information regarding her salary and hours for the positions listed on her resume. Complainant applied for reconsideration of her application on April 23, 2009 and May 12, 2009. Each time, the Human Resources Department sustained its decision to not refer Complainant's application to the selecting official.
According to the Supervisory Human Resources Specialist (SHRS), the Human Resources Specialists under his supervision who were responsible for determining eligibility would have had no idea how to rate Complainant's position against the Office of Personnel Management Qualification Standard.1 Complainant alleges that the selectees for the vacancy at issue and applicants for other vacancy announcements did not have the required information regarding salary and hours. Complainant asserts that their applications were referred to the selecting official and hers was not. SHRS contradicted Complainant's assertion and testified that all of the people named by Complainant had the required information in their application packages. SHRS also stated that none of the applicants' demographic information, including Complainant's race, color, age or EEO activity, was known by any Human Resources Specialist involved in eligibility determinations.
Complainant also alleged that she requested a desk audit of her position by e-mail to a Human Resources Specialist (HR1), on May 18, 2009. On May 21, 2009, HR1 sent questionnaires to both Complainant and S1. Complainant returned her questionnaire on June 8, 2009. S1 did not return the questionnaire until August 21, 2009, after his supervisor (S2) ordered him to complete it. S1 also provided a revised response on August 24, 2009. The record shows that a desk audit was scheduled for September 17, 2009. According to HR2, Complainant stated that she wanted a desk audit in order to be compensated for budget duties which were performed previously. HR2 states that he explained that a desk audit would not result in any back pay and would only evaluate current and continuing duties assigned to the position. According to HR2, Complainant stated that she wanted a copy of S1's completed questionnaire and proof that a desk audit would not compensate her for past work. HR2 also stated that Complainant notified him that she did not have a copy of her current position description (PD). HR2 testified that he advised Complainant that he would send her a copy of her current PD and information regarding the desk audit process. On September 23, 2009, HR2 provided Complainant with this information. HR2 testified that he considered the desk audit process closed since it appeared to him that Complainant did not want to proceed.
However, in January 2010, during a monthly EEO/Human Resources meeting, the EEO office inquired as to the status of Complainant's desk audit and the Human Resources office explained that Complainant's desk audit request was closed due to Complainant's declination to participate further in the process. The EEO office explained to the Human Resources office that Complainant believed her request was still active and requested that the Human Resources office reopen the request. The process was, thereafter, immediately reopened. A decision was reached on April 29, 2010 which concluded that the PD to which Complainant was currently assigned accurately reflected the work she was performing at the time.
ANALYSIS AND FINDINGS
Claim 1 - Eligibility Determination
In the FAD, the Agency determined that Complainant failed to meet the third element of her prima facie case. Specifically, the Agency concluded that Complainant failed to produce evidence that similarly situated individuals, outside her protected classes were treated more favorably. The Agency noted that Complainant alleged that at least one selectee (C1) did not include the same information regarding salary and hours, yet she was referred for consideration. However, SHRS denied this assertion and the record does not contain evidence to corroborate Complainant's assertion. According to the evidence in the record, all applicants for the position of Budget Analyst were treated the same way in that all were required to include the necessary information regarding salary and hours in the original submission, and those who did not were disqualified. The Agency also noted that Complainant compared her circumstances to individuals who were not similarly situated in that they applied to different positions. However, the Agency did not consider circumstances surrounding eligibility requirements pertaining to vacancies that Complainant did not apply for to be relevant to the pending complaint.
In addition, the Agency found that management officials had articulated legitimate, nondiscriminatory reasons for the non-referral of Complainant's application. Specifically, management officials maintained that because information relating to salary and hours was missing from Complainant's resume, the Human Resources Department could not rate Complainant's past experience to properly evaluate her application.
The Agency also noted that in support of her claim of pretext, Complainant argued that since her SF-50s were included in her application package, the Human Resources Department had all the information necessary to rate her application. However, the Agency noted that the Agency maintained that the guidelines of the Office of Personnel Management and the Department of Interior make clear that resumes or applications must include all information required on Optional Form (OF-612). The referred applications included all such information while the Complainant's application for the Budget Analyst position did not. Moreover, the Agency noted that the undisputed record shows that the Human Resources Department does not receive demographic information regarding applicants. Accordingly, the Agency concluded that the preponderance of the evidence did not support the conclusion that the non-referral of Complainant's application was based upon discriminatory or retaliatory animus.
Upon review of the record, we agree with the Agency and conclude that Complainant failed to establish, by a preponderance of the evidence that the failure of a human resources specialist to refer Complainant's application for consideration was based upon discriminatory or retaliatory motives. The record supports the conclusion that the decision-maker was not aware of Complainant's age, race, color or prior EEO activity. In addition, the record fails to support a finding that any other responsible management official was motivated by discriminatory or retaliatory animus.
Claim 2 - Delayed Desk Audit
The Agency determined that Complainant failed to establish that similarly situated individuals outside her protected groups were treated more favorably than she was treated. Specifically, the Agency noted that Complainant was the only subordinate of S1 who requested a desk audit. The Agency also found that management officials articulated legitimate, non-discriminatory reasons for its actions. Specifically, the Agency noted that human resources officials indicated that a lot of the delay in processing Complainant's desk audit appeared to be a lack of communication and the product of turnover in the staffing and classification of positions such that three different people were in charge of the request for Complainant's desk audit. In addition, there was no specific time-frame in which desk audits were expected to be completed.
Upon review of the record, we conclude that Complainant failed to establish, by a preponderance of the evidence that any delay in the processing of her desk audit was due to discriminatory or retaliatory animus. Aside from bare assertions of racial animus on the part of S1, the record does not contain any specific information to lead the fact finder to conclude that S1 held racial animus and delayed his response to the desk audit questionnaire for approximately two months due to such animus toward Complainant. Moreover, the record is devoid of evidence that S1 held any other discriminatory or retaliatory animus toward Complainant. Lastly, the record is devoid of evidence that the delay in Complainant's desk audit between September 2009 and February 2010 was due to discriminatory or retaliatory animus toward Complainant by any other Agency official.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,2 including those not specifically addressed herein, we AFFIRM the Agency's final 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
September 7, 2012
__________________
Date
1 The individuals who were responsible for determining eligibility no longer worked at the Agency at the time of the EEO investigation.
2 Despite Complainant's assertion on appeal, we conclude that the EEO investigative record was adequately developed.
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01-2011-1058
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013