0120053306
04-13-2007
Donna Gaskins, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Donna Gaskins,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200533061
Agency No. 020195
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 18, 2005, final decision concerning
complainant's 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 Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. �
206(d) et seq. Complainant alleged that the agency discriminated
against her on the bases of race (African-American), sex (female)
and age (D.O.B. 03/04/61) when, on November 20, 2001, she learned that
she was not referred on the Roster of Best Qualified for the position
of Equal Opportunity Specialist, GS-360-9/11. She also alleged that
she was discriminated against on the basis of sex when she received
less compensation than a higher graded male employee within the same
organization for the performance of substantially equal work beginning
mid-November 2001.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's
final decision. The record shows that, with respect to issue 1,
the agency found that complainant established a prima facie case
of discrimination. Notwithstanding, the agency argued that it had
articulated nondiscriminatory reasons for its actions, namely that
the agency utilized two sources of recruitment, its delegated examining
authority and the merit promotion process. Under the delegated examining
authority, the top three candidates were referred in accordance with
OPM's "rule of three." The top three candidates scored 96, 90, and 87.
The complainant scored 85 and was therefore not referred for selection.
Under the merit promotion process, the rating and ranking panel used a
cut-off score of ten (10) and referred only those applicants who had
a cumulative score of ten (10) or higher. The complainant and two
other applicants received a cumulative score of nine (9) and were not
included on the Best Qualified list. The agency found that complainant
failed to show that the agency's articulated reasons were pretext for
discrimination. The agency also determined that complainant had not
offered any evidence which showed that she was more qualified than the
candidates that were referred for selection. Further, the agency noted
that the person ultimately selected for the position was a Black female.
Finally, the agency determined that there was no evidence that age was
considered regarding the referral of the applicants. Specifically, the
agency noted that the only reference to age was when complainant believed
that the position had gone to a younger Asian male, which it had not.
With respect to issue 2, the agency found that complainant failed to
establish a prima facie case of discrimination under the Equal Pay Act
because although she established that she is a member of a protected
group, she failed to establish that she received less pay than an
individual not of her protected group for performing substantially
equal work. The agency maintained that complainant and the employee
that she compared herself to, an Asian male, GS-12 EO Specialist, did
not perform the same work. In fact, the Deputy Director indicated that
the Asian male worked under his direct supervision and was responsible
for large scale projects that impacted policy and procedures Department
wide, while complainant, a GS-11 EO Specialist, primarily conducted
investigations for the Program Complaints Division.
On appeal, complainant contends that there were many discrepancies in
the selection process. She also maintains that she had been performing
most, if not all of the duties of the advertised position that she was
not selected for. Further, she states that her duties and those of
the Asian male are different now, but in November 2001, they performed
similar functions.
The Commission finds that based on a review of the record, the
preponderance of the evidence does not establish that discrimination
occurred. The Commission finds that with respect to issue 1, there seems
to be some discrepancy as to how the rating and ranking for the position
was scored, but it does not seem to be specific to complainant, and the
entire applicant pool was rated under the same process. In short, the
record reflects that complainant was not referred for the Best Qualified
list because her score was not one of the three highest. Further, we
find that complainant has not presented any evidence that suggests she
was better qualified than those placed on the Best Qualified list.
With respect to issue 2, the evidence clearly establishes that complainant
and the male EO Specialist did not perform the same or similar duties.
The record reflects that complainant was an investigator who investigated
complaints of discrimination, while the male EO Specialist handled special
assignments for the Deputy Director and dealt with policy development
and management analysis. Regarding contentions on appeal that they
performed similar functions in November 2001, other than occasionally
working on the same database, complainant has not shown that their duties
were substantially similar. Accordingly, the Commission affirms the
finding of 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
__4/13/07________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120053306
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120053306