0120122264
09-18-2012
Huyen L. Nguyen, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Huyen L. Nguyen,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122264
Agency No. ARPOM10SEP04325
DECISION
On April 28, 2012, Complainant filed an appeal from the Agency's April 17, 2012 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Dentist at the Agency's Dental Clinic at the Garrison-Presidio of Monterey facility in California. Complainant was employed by Central Care, Inc., a staffing firm providing medical personnel to the Agency under contract.
In March 2010, the Colonel in charge of the Monterey Dental Clinic met with staff and notified them that the Agency was anticipating filling a number of permanent federal civil service (GS) dental positions in the near future. He indicated that he anticipated openings in various locations and advised checking the Agency's hiring website.
In March 2010, a general vacancy announcement seeking applicants for various dental positions was posted on the hiring website. No particular locations were indicated on this generic announcement. The announcement indicated that applications were due to a centralized recruiting office by no later than April 16, 2010, and stated that selectees would begin work in September. Complainant did not submit an application in response to this announcement.
On August 25, 2010, Central Care, Inc. notified Complainant that her contract position was being converted to a federal position, and her contract services would no longer be needed. At that point, Complainant searched the website for vacancy postings for federal positions. When she found no vacant positions, Complainant contacted the Colonel about the availability of federal dentist positions in Monterey. The Colonel indicated that a vacancy announcement for a GS dentist position in the Monterey Dental Clinic had been posted in the break room in April 2010. As Complainant did not apply for the position, she was not considered for the vacancy.
The Colonel indicated that he posted the vacancy announcement on a board visible to Complainant and her colleagues in April 2010. Complainant asserted that the posting was not there and, because she was not aware of the posting, she failed to apply for the position. Instead, a co-worker ("selectee") (Asian male, no prior EEO activity) applied and was selected for the federal dental position. The record shows that the selectee submitted his application in response to the vacancy announcement by the April 16, 2010 due date.
On September 30, 2010, believing she was subjected to discrimination, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Vietnamese), sex (female), and reprisal for prior protected EEO activity.1
The Agency initially dismissed the complaint for failure to state a claim. Complainant filed an appeal with the Commission. In our decision in EEOC Appeal No. 0120110800 (July 27, 2011), we reversed the dismissal and remanded the complaint back to the Agency for continued processing. Specifically, we determined that the Agency erred in defining the complaint as a claim of harassment. Rather, we found that Complainant alleged that she had been discriminatorily excluded from consideration for the federal dentist position in Monterey.
Upon remand, the Agency investigated the complaint. 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.
Complainant appealed. On appeal, Complainant asserts that the Colonel did not post the position as he claimed. Specifically, Complainant indicated that the Colonel was not in the office on the day he asserted he posted the vacancy announcement. In addition, Complainant argued that she was excluded so that the Agency could hire Co-worker 1, who is the younger brother of a high level officer in the Agency's dental activity.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). 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, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
While a complainant usually will not be able to establish a prima facie case of discriminatory non-selection when he or she did not apply for a position, the Commission has found that, under certain circumstances, a complainant may do so where he or she alleges that the agency discouraged complainant from applying or that the application process was secretive. See Ozinga v. Dep't of Veterans Affairs, EEOC Request No. 05910416 (May 13, 1991). Such is the case here.
However, upon review, we find that the Agency's responsible management official successfully rebutted any initial inference of discrimination by providing legitimate, nondiscriminatory reasons for not selecting Complainant for the federal position. The Colonel stated that he announced to the staff, including Complainant, that federal dentist positions would be filled in the near future and to check the hiring website for vacancy announcements. It is undisputed that the Agency posted an announcement on the website in March 2010 seeking applicants for multiple dental positions, although particular locations were not indicated. The announcement stated that all applications had to be submitted by April 16, 2010, and provided specific information on where and how to apply. The Colonel stated that on March 2, 2010, he posted a paper copy of this general announcement on the bulletin board at the clinic. He indicated that he was not permitted to discuss specific openings at the Agency's facility in Monterey with the staff.
On April 2, 2010, the Colonel averred that he came to the office and posted another copy of the vacancy announcement on the bulletin board that suggested that at least one of the positions would be at Monterey. He also stated that he held a brief meeting with staff to inform them that the position was posted. The application process was open until April 16, 2010, but Complainant did not apply. As such, the Colonel stated that Complainant was not considered for the position.
After a thorough review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by the Colonel were a pretext for discrimination. Complainant asserts that she was specifically excluded from consideration for the Monterey position. She alleges that some of her co-workers were specifically told by the Colonel about the vacancy. However, the Colonel denies showing any favoritism in announcing the position. The selectee stated, and the evidence supports, that he went to the website and filed an application. On the application, he indicated that he wished to be considered for the Monterey location. There was no evidence that the Colonel purposefully kept the information of the vacancy from Complainant.
Complainant has also argued that the selectee was favored because he was related to a high level management official in the dental activity. While evidence of pre-selection or favoritism may act to discredit an agency's explanation for its selection, pre-selection alone does not violate Title VII when there is no evidence that it was based on a factor prohibited by the statute. Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). In the instant matter, Complainant offered no persuasive evidence that pre-selection, if it occurred, was based on the discriminatory factors of race, national origin, sex or prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, 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 18, 2012
__________________
Date
1 The Agency's EEO office indicated that it had processed no prior complaints of discrimination by Complainant. As she was a contract employee, the EEO office suggested that any prior complaints would have been filed against Central Care, Inc.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122264
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122264