0120061069
03-27-2007
Ana C. Dorsey, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Ana C. Dorsey,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200610691
Hearing No. 120-2003-000481X
Agency No. 2022025R
DECISION
Complainant filed an appeal from the September 19, 2005 decision of the
EEOC Administrative Judge (AJ) finding no discrimination.2
Complainant alleged that the agency discriminated against her on the
bases of race (African-American) and in reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 (Title VII),
as amended. 42 U.S.C. � 2000e et seq. when she was not selected for the
position of Transportation Claims Examiner (Leader).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation. Complainant requested a hearing and
a hearing was held before an AJ on March 16, 2004, in Richmond, Virginia.
In her decision finding no discrimination, the AJ found that complainant
applied for Vacancy Announcement No. 01-0578-6MS, a position for a
Transportation Claims Examiner (Leader) and was interviewed. The AJ
also found that the selectee for the vacant position possessed the
requisite knowledge and skills for the position but she declined the
offer to fill the position. The AJ found that the agency re-announced
the position twice under Vacancy Announcement No. CG-01-0790-6MS. The AJ
found further that complainant applied for the re-announced position
but was not selected. The AJ found also that a Traffic Specialist was
reassigned to the vacant position on November 18, 2001.
The AJ concluded that the agency did not discriminate against complainant
and that complainant failed to rebut the agency's reason for its actions.
Regarding reprisal, the AJ found that the selecting official was unaware
of complainant's prior EEO activity and also concluded that there was
no evidence that the selecting official knew or would have known about
complainant's protected activity.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
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).
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that:
(1) he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
As an initial matter, the Commission notes that telephone testimony
was given by two witnesses. One witness was the selectee (Selectee A)
who declined the position. The record reveals that the AJ granted the
agency's motion to have Selectee A testify by telephone. In its motion
requesting the telephone testimony of Selectee A, the agency stated that
Selectee A was commuting from Elizabeth City, North Carolina to Norfolk,
Virginia to work and that driving from Elizabeth City, North Carolina
to Richmond, Virginia to an appearance which would last less than an
hour would be a major inconvenience to Selectee A. The agency also
noted that Selectee A had minor children and that spending the night
in Richmond, Virginia, where the hearing was scheduled, would also be a
major inconvenience because of Selectee A's childcare responsibilities.
The second witness, was Selectee B who was ultimately reassigned to
the vacancy at issue. The record reveals that in the Agency's List of
Proposed Witnesses (List), the agency indicated that Selectee B would
be testifying by telephone. The agency also noted in its List to the
AJ that Selectee B was no longer a federal employee and was living
in Minnesota.
There is no indication that any of the parties objected to the taking
of this telephone testimony or have any objections in the instant
appeal.1 The Commission has held that testimony may not be taken by
telephone in the absence of exigent circumstances, unless at the joint
request of the parties and provided specified conditions have been met.
See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521
(May 17, 2006).2 However, since the facts of this case pre-date Louthen,
we will assess the propriety of taking of some witness testimony hearing
telephonically by considering the totality of the circumstances. Here,
exigent circumstances may have existed. We need not decide whether
exigent circumstances existed, because it is clear that there were no
issues of witness credibility that might have been impacted by the taking
of testimony telephonically. The AJ made no credibility findings regarding
any witnesses. Under these circumstances, even if it is assumed that the
AJ abused her discretion in this case by taking testimony telephonically,
the Commission finds that her action constituted harmless error in the
instant matter.
The agency has articulated legitimate, non-discriminatory reasons for
its action, i.e. that the selectee performed the best at her interview,
was the number one overall choice by each of the panel members based on
her experience and interview, and the vacant position was re-advertised
in order to obtain a larger pool of candidates, although, we note, this
goal was not accomplished. While the evidence indicates that complainant
was well-qualified for the position, complainant has not shown that
her qualifications were plainly superior to the qualifications of the
selectee. Complainant's resume reflects that complainant's paralegal
skills exceeded those of the selectee but the selectee also had legal
skills. Moreover, legal skills were only part of the requirements of the
position and the record reveals that some requirements for the position
were considered more significant to the selecting official and to the
selecting official's supervisor. In addition, although paralegal skills
were a requirement of the position, the record establishes that these
skills may not have been called upon as often as other skills in the
position. The record also indicates that although complainant did well
during the assessment process which evaluated her experience, complainant
did not perform as well as the selectee during the interview.
Even if complainant is correct in arguing that panel members gave
too much weight to her performance during the interview and not to
her academic and professional record, complainant has not shown that
the agency's action in so doing was prompted by discriminatory animus.
The record reveals that complainant herself testified that she did not
respond well to one of the technical questions asked during the interview.
The Commission notes that the selecting official and her supervisor were
seeking current experience in personnel claims and concluded that although
the selectee had such current experience, complainant did not. The record
reveals that complainant had current experience in personnel claims as
reflected in her resume. Nonetheless, even if the selecting official
and the selecting official's supervisor were erroneous in concluding that
complainant lacked current experience in personnel claims, complainant has
not shown that unlawful discriminatory animus motivated this conclusion.
The Commission further concludes that complainant has failed to present
evidence that more likely than not the agency's articulated reasons for
its actions were mere pretext for unlawful discrimination and that the
agency was motivated by discriminatory animus. There is substantial
evidence in the record which supports the AJ's ultimate finding of no
discrimination.
Finally, the Commission notes that complainant asserts that the agency's
investigation was inadequate. The Commission finds that the record was
sufficiently developed through the report of investigation, discovery
and the hearing process so that findings could be made on the claims
raised by complainant.
The agency's decision finding of no discrimination is AFFIRMED.
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
March 27, 2007
__________________
Date
1 Due to a new data system, the appeal has been assigned the
above-referenced appeal number.
2 EEOC Regulation 29 C.F.R. � 1614.109(i) provides that if an agency
does not issue a decision within 40 days of receipt of the AJ's decision
in accordance with � 1614.110, the decision of the AJ shall become the
decision of the agency. The record does not reveal that the agency
issued a decision. Accordingly, the decision of the AJ has become the
decision of the agency.
1The mere lack of an objection is not dispositive, however.
See Louthen v. United States Postal Serv., EEOC Appeal
No. 01A44521 (May 17, 2006).
2"In Louthen, the Commission has promulgated its policy regarding
the taking of telephonic testimony in the future by setting
forth explicit standards and obligations on its Administrative
Judges and the parties. Louthen requires either a finding
of exigent circumstances or a joint and voluntary request
by the parties with their informed consent. When assessing
prior instances of telephonic testimony, the Commission will
determine whether an abuse of discretion has occurred by
considering the totality of the circumstances. In particular,
the Commission will consider factors such as whether there were
exigent circumstances, whether a party objected to the taking of
telephonic testimony, whether the credibility of any witnesses
testifying telephonically is at issue, and the importance of
the testimony given telephonically. Further, where telephonic
testimony was improperly taken, the Commission will scrutinize the
evidence of record to determine whether the error was harmless,
as is found in this case." Sotomayor v. Department of the Army,
EEOC Appeal No. 01A43440 (May 17, 2006).
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0120061069
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036