0120110502
09-07-2012
Barbara J. McIntosh-Cheek, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
Barbara J. McIntosh-Cheek,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120110502
Hearing No. 430-2008-00449X
Agency No. HS-07-USCG-002169
DECISION
Complainant timely filed an appeal from the Agency's September 29, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether Complainant established that the Agency discriminated against her on the basis of race (African American) when it did not select her for the position of Supervisory Accounting Technician, GS-525-8/9, and (2) whether Complainant established that the Agency discriminated against her on the bases of race and reprisal for prior EEO activity when it did not select her for the position of Lead Accounting Technician, GS-525-8.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accounting Technician, GS-7, at the Agency's Financing Center in Chesapeake, Virginia. In a complaint dated July 23, 2007, Complainant alleged that the Agency discriminated against her on the basis of race (African American) when it did not select her for the position of Supervisory Accounting Technician, GS-525-8/9. She subsequently amended her complaint to allege that the Agency discriminated against her on the bases of race and reprisal for prior EEO activity when it did not select her for the position of Lead Accounting Technician, GS-525-8.
In February 2007, the Agency announced a vacancy for a Supervisory Accounting Technician, GS-525-8/9, Temporary Promotion Not to Exceed One Year. Complainant applied and was qualified for the position at the GS-8 level. Fourteen applicants qualified for the position at the GS-9 level. A three-member selection panel decided to fill the position at the GS-9 level and considered only the applicants on the GS-9 list. The Agency filled two vacancies from the list. One panel member (SO1), who selected a Caucasian applicant, told the EEO Investigator that the working level of the position was at the GS-9 level and that the Agency needed people who "were ready to go." A second panel member (SO2), who also selected a Caucasian candidate, told the Investigator that the panel was looking for leadership and experience. The third panel member (SO3) stated that the panel sought people with leadership qualities and that the candidates who were already at the GS-8 level had served previously as leads.
In June 2007, the Agency announced a vacancy for a Lead Accounting Technician, GS-525-8, Temporary Promotion Not to Exceed One Year. Complainant applied for the position and was one of 18 applicants interviewed by a four-member selection panel. The panel members individually rated the candidates' resumes according to criteria such as leadership abilities, oral and written communication skills, knowledge of accounting principles, and ability to analyze financial data. They also individually rated the candidates' responses to ten interview questions, including questions about leadership qualities, handling deadlines, efforts to prevent errors, decision-making experiences, and dealing with irate customers. They then added the individual ratings to create combined ratings for the candidates. Complainant received a combined rating of 81.
The Agency filled seven positions. SO1 chose two African-American applicants who received combined ratings of 140 and 126. He stated that the panel selected candidates from those who had received combined scores of at least 100, that he based his selections on information from the resumes and interviews, and that the candidates he chose had provided excellent answers to three questions and had not given poor answers to any questions. He also stated that Complainant was rated fourth from the bottom and had not adequately answered questions about leadership qualities, decision-making, and her qualifications for the position. According to SO1, Complainant replied that "you can fix any error that occurs" when asked about efforts to prevent errors. SO2 chose an African-American candidate who received a rating of 172 and two Caucasian candidates who received ratings of 140 and 106. She stated that she based her selections on the candidates' interviews and scores. SO3 chose an Asian-Pacific Islander applicant who received a rating of 148 and stated that she based her selection on the applicant's resume and interview. The fourth panel member (S04) chose an African-American applicant who received a rating of 120. She stated that she did not select Complainant because she did not consider any applicant who did not have a combined score over 100.
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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that her score was 100 rather than 81, that she was well qualified, and that there is a "climate of discrimination" at the Agency. Complainant argues that she "was not afforded the ability to present a case due to financial restraints" and asks for the opportunity to present additional evidence at a hearing.1
The Agency raises no arguments on appeal.
STANDARD OF REVIEW
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 Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
As a preliminary matter, we note that Complainant asks for a new hearing to allow her to present additional evidence. Complainant has not described the nature of the new evidence or explained why it was not previously available. Further, while acknowledging Complainant's assertion that she was unable to pursue a hearing previously on account of financial conditions, Complainant nonetheless voluntarily withdrew her hearing request, and our regulations do not provide for a second opportunity to request a hearing at this stage. Consequently, we deny Complainant's request for a new hearing.
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 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
We assume for purposes of analysis, without so finding, that Complainant has established prima facie cases of discrimination based on race and reprisal. We find that the Agency has articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the positions at issue and that Complainant has not shown the Agency's reasons to be pretexts for discrimination.
The evidence establishes that the selection panel decided to fill the Supervisory Accounting Technician position at the GS-9 level because the panel members were looking for candidates with leadership qualities and experience. Although Complainant argued that she was qualified for the position, the evidence establishes that Complainant was not qualified for the position at the GS-9 level. Complainant has not shown that the decision to fill the position at the GS-9 level was motivated by discriminatory animus. Accordingly, Complainant has not shown that the Agency discriminated against her when it did not select her for the Supervisory Accounting Technician position.
Similarly, Complainant has not shown that the Agency discriminated against her when it did not select her for the Lead Accounting Technician position. Although Complainant argues that she received a score of 100, she appears to be referring to the "Staging Area Applications Listing" rather than to the selection panel's ratings. The evidence establishes that Complainant's panel rating of 81 is lower than the selectees' ratings. Complainant has not shown that her qualifications were clearly superior to those of the selectees or that considerations of her race or prior EEO activity influenced her rating. She alleges that the Agency has a climate of discrimination, but she has not shown that discriminatory animus motivated the Agency's decision not to select her for the position.
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 and its finding of no discrimination.
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 Referring to the Freedom of Information Act, 5 U.S.C. � 552 (FOIA), Complainant asks for statistics concerning the advancement of non-Caucasian employees at the Agency. To the extent Complainant wishes to obtain information from the Agency pursuant to FOIA, she should file a FOIA request with the Agency.
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0120110502
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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