01981268
11-24-1998
Bettie Harper, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Bettie Harper v. Department of Veterans Affairs
01981268
November 24, 1998
Bettie Harper, )
Appellant, )
) Appeal No. 01981268
v. ) Agency No. 96-1799
) Hearing No. 130-96-8221X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of race (Black), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges
she was discriminated against when she was not selected for a GS-6 Lead
Dental Assistant (LDA) pursuant to Vacancy Announcement No. 96-41.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a GS-5 Dental Assistant at the agency's Jackson, Mississippi
Medical Center. Among her specific allegations, appellant felt the
above-referenced selection was discriminatory because she was better
qualified, with more education than the selectee (S'EE) (Caucasian),
another employee (W1) (Caucasian) overheard a panel member (PM1)
(Caucasian) utter racially derogatory remarks, PM1 was a social friend
of S'EE, and provided her an advanced copy of the interview questions,
and the interview questions were unrelated to the LDA duties and
responsibilities and were therefore unfair.
The agency's personnel department certified both S'EE and appellant
as qualified for the LDA position. Additionally, each panel member
indicated that both S'EE and appellant were highly qualified, but that
S'EE performed better in the interview than appellant and was therefore
selected for the LDA position. PM1 denied providing an advanced copy
of the interview questions to S'EE, and S'EE denied receiving them.
W1 indicated that she believed women were being discriminated against,
and she did not recall hearing PM1 utter any racially derogatory remarks.
A second panel member (W2)(Black), stated that he heard racially
derogatory statements had been made at the facility, but stated that
he heard from another employee that such statements were made, and he
(W2) did not know who had made such statements. PM2 indicated that
it was a "toss-up" between appellant and S'EE as to who would be the
best candidate for the LDA position because appellant was certified and
had more education, but S'EE had more years of on-the-job experience
than appellant. A third witness (W3) (Black) indicated that in his
opinion, the selection panel could have been established more fairly,
that Blacks in general have not been promoted to supervisory positions,
and that S'EE's selection may have been due to favoritism as well as
race considerations. All the panel members indicated that each candidate
interviewed was qualified as a Dental Assistant, and that there was little
need to question the candidates on those skills, but to focus more on
management skills, which were required of an LDA. The only Black panel
member (PM2) stated that S'EE was selected because she provided the best
answers to the interview questions. PM2 also indicated that the panel
may have been looked upon more favorably if PM1 had not been a member
of the selection panel, and that the absence of Black supervisors made
it more difficult to advance the interest of Black employees.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on June 27,
1996. At the conclusion of the investigation, appellant received a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a Recommended Decision
(RD) finding no discrimination. The AJ concluded that while appellant
established a prima facie case of discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that
S'EE was highly qualified for the LDA position and performed better
than the other candidates during the interview. Based on the testimony
of the parties and the record, the AJ concluded that appellant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful race discrimination. The agency's FAD
adopted the AJ's RD. Appellant makes no new contentions on appeal,
and the agency requests that we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed
to demonstrate that the selection of S'EE was more likely than not
motivated by discriminatory animus toward appellant's race. We agree
with the AJ that both candidates were highly qualified, and appellant's
qualifications were not so plainly superior so as to warrant an inference
of discrimination. See Bauer v. Bailar, 647 F.2d 1037 (10th Cir. 1981).
We therefore discern no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record,
along with the credibility of the witnesses. See Gathers v. United
States Postal Service, EEOC Request No. 05890894 (November 9, 1989);
Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). We therefore AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
Nov 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations