01A21190
06-19-2002
Juanita Womack; Matthew Harper Complainants, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Juanita Womack; Matthew Harper v. Department of the Air Force
01A21653; 01A21190
June 19, 2002
.
Juanita Womack;
Matthew Harper
Complainants,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal Numbers 01A21653; 01A21190
Agency No. RX1M99384; RX1M99408
Hearing No. 110-AO-8518X; 110-AO-8502X
DECISION
Complainants timely initiated separate appeals from final orders
concerning their equal employment opportunity (EEO) complaints of unlawful
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. when they
applied but were not selected for the same GS-14 Supervisory Management
Analyst position. These appeals are accepted pursuant to 29 C.F.R. �
1614.405.
Complainant Womack alleged that she was not selected because of her
race (African-American) and sex (female). Complainant Harper alleged
that he was not selected because of his race (African-American).<1>
Following an investigation, complainants requested a hearing before an
EEOC Administrative Judge (AJ). The AJ consolidated these complaints
and conducted a single hearing. Following the hearing, the AJ issued
a single decision concluding that complainants failed to demonstrate
discrimination. Specifically, the AJ concluded that complainants
established a prima facie case of race discrimination and with respect to
complainant Womack, sex discrimination because the selectee (Caucasian,
male) was not a member of complainants' protected classes. The AJ further
concluded that the agency articulated legitimate nondiscriminatory
reasons for its actions. The AJ credited the agency's statement
that it selected the best qualified candidate for the position, based
upon valid criteria and a career resume submitted by each candidate.
The AJ found that complainants did not establish that more likely than
not, the agency's articulated reasons were pretexts to mask unlawful
discrimination. The agency issued final orders adopting the AJ's
decision. It is from these final orders that complainants now appeal.
We find it appropriate to consolidate the instant appeals inasmuch as
they relate to the same matter. 29 C.F.R. � 1614.606.
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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Complainants
identify numerous problems with the way the selecting official (SO)
made the selection. Complainant Harper relies on the theories that SO
preselected the selectee and that SO underrated aspects of his [Harper's]
qualifications. Complainant Womack suggests that SO relied on irrelevant
rating criteria, that SO inflated the selectee's qualifications, that
the selection criterion was inapplicable to the position and that the
agency had previously fostered a climate of racial and gender favoritism.
Complainants' concentration on whether the rating criteria accurately
matched the duties of the position, as well as complainants' focus
on the alleged preselection of the selectee, are largely misguided,
because even if we assume arguendo that the selection process was unfair,
complainants' submit no evidence that they were race or sex motivated.
The Commission does not enforce traditional merit promotion rules where
there is no evidence that the agency violated one of the civil rights
statutes that we enforce.<2> We find complainant Womack's assertion that
the agency fostered a climate of racial and gender favoritism probative
on the issue of whether the selection was based on race and/or sex.
However, based upon our review of the record in this case, there is
inadequate support for the conclusion that a climate of race and/or sex
discrimination invaded the selection process.
Therefore, after a careful review of the record, including complainants'
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final orders which found no discrimination against Complainant Juanita
Womack when the agency failed to select her for the GS-14 Supervisory
Management Analyst position. This decision also affirms the agency's
final order which concluded that the agency did not discriminate against
Complainant Matthew Harper when it failed to select him for the same
GS-14 Supervisory Management Analyst position.
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
June 19, 2002
__________________
Date
1 Complainant Harper withdrew the basis of sex
(male) from his complaint at a pre-hearing conference on March 13, 2001.
2 EEOC Regulation 29 C.F.R. � 1614.103(a) provides that individual and
class complaints of employment discrimination and retaliation prohibited
by Title VII (discrimination on the bases of race, color, religion,
sex and national origin), the ADEA (discrimination on the basis of
age when the aggrieved individual is at least forty years of age),
the Rehabilitation Act (discrimination on the basis of disability),
or the Equal Pay Act (sex-based wage discrimination) shall be processed
in accordance with this part. EEOC Regulation 29 C.F.R. � 1614.101(b)
provides that no person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. � 2000e et seq.), the Equal Pay Act (29 U.S.C. � 206(d)) or
the Rehabilitation Act (29 U.S.C. � 791 et seq.) or for participating in
any stage of administrative or judicial proceedings under these statutes.