0120072568
08-10-2007
Elias Cabrera, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Elias Cabrera,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120072568
Agency No. EEODFS-06-0412
DECISION
Complainant filed an appeal from the agency's April 13, 2007, 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. 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 Tax Specialist/Tax Compliance Officer at the agency's Internal
Revenue Service facility in Woodland Hills, California. On May 13, 2003,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race (Hispanic), national origin (Hispanic),
and age (60) when:
Complainant was not ranked among the best qualified list and ultimately
not selected for the position of Industry Economist, GS-0110-13, according
to Vacancy Announcement Number LM61128-MC.
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 decision pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that he was
subjected to discrimination as alleged.
In its final decision, the agency found that complainant established a
prima facie case of age, race, and national origin discrimination in
that he applied for the position of Industry Economist and was found
qualified for the position. However, complainant's application was
ranked below the cutoff score and complainant's application was not
considered for selection by the selecting official. The agency observed
that candidates outside of complainant's protected classes were selected
for the position.
The agency found, however, that complainant's application was ranked
and assigned a score against the same ranking system used to evaluate
the 115 applications the agency received in response to the vacancy
announcement. Complainant did not, the agency found, show that the system
was discriminatory. Accordingly, the agency determined that complainant
had not show the agency's reasons for excluding him from consideration
by the recommending official were a pretext to mask discrimination.
On appeal, complainant argues that an identified agency official admitted
to him that the agency was better off hiring younger people who could
stay with the agency for a long time. Complainant further argues that
the agency refused to provide him with the information about the ranking
system used so that he could show the system was discriminatory.
On appeal, the agency says that after the candidate applications were
deemed to meet the minimum qualifications necessary, the applications
were forwarded to the ranking official who used five non-discriminatory
criteria to score each application. The criteria included: (1) knowledge
of specific industries, (2) the ability to determine prices for products
or services, (3) ability to conduct conversations and interviews to elicit
information, (4) knowledge of international and multinational corporate
operations, and (5) knowledge of research tools and data sources.
The agency notes that those who ranked the highest received interviews.
The agency states that the ranking official did not know complainant and
did not know complainant's age, race or national origin. He therefore
could not have considered complainant's race, age or national origin when
rating and ranking complainant's application materials. The agency
requests that the Commission affirm its final decision.
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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 pretextual. 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).
In the instant case, the record shows that of the five candidates
appointed, two selectees were Asian, three were White and that all of
the selectees were younger than complainant (36, 41, 47, 50, and 55).
After a careful review of the record, we find that complainant has not
shown that complainant's race, age or national origin were known to
the ranking official or that any evidence suggests the ranking official
considered complainant's race, age, or national origin when assigning
complainant's application a score of 57. We note that the agency's final
decision shows that the cutoff score was 63 and that all of the candidates
selected or receiving an interview scored higher than complainant did.
We find that complainant has not presented any evidence that the agency's
ranking system was discriminatory.
We therefore AFFIRM the agency's final decision, finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 10, 2007
__________________
Date
2
0120072568
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072568