Juanita Womack; Matthew Harper Complainants,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJun 19, 2002
01A21190 (E.E.O.C. Jun. 19, 2002)

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.