Kimberly Y. Hill, Complainant,v.Sean O'Keefe, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionFeb 4, 2004
01A31192 (E.E.O.C. Feb. 4, 2004)

01A31192

02-04-2004

Kimberly Y. Hill, Complainant, v. Sean O'Keefe, Administrator, National Aeronautics and Space Administration, Agency.


Kimberly Y. Hill v. National Aeronautics and Space Administration

01A31192

February 4, 2004

.

Kimberly Y. Hill,

Complainant,

v.

Sean O'Keefe,

Administrator,

National Aeronautics and Space Administration,

Agency.

Appeal No. 01A31192

Agency No. NCN-01-GRC-AO23

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning her complaint 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. The appeal is accepted pursuant to

29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS

the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Procurement Assistant GS-1106-6, at the agency's Glenn

Research Center, Procurement Division, Space Systems and Grant Branch.

Complainant sought EEO counseling and subsequently filed a formal

complaint on January 10, 2001, alleging that she was discriminated against

on the basis of her race (African-American) when she was not selected

for the position of Contract Specialist, GS-1102-7/9/11, in June 2000.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or,

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision.

In its FAD, the agency concluded that complainant established a prima

facie case of discrimination because she demonstrated that she applied

for and was qualified for the position in question, she was not selected,

and that those selected were not members of her protected class. Even so,

the agency concluded that it had legitimate nondiscriminatory reasons

for not selecting complainant �namely that complainant's supervisory

ratings were not as high as those of the selectees, her writing skills

were weak based on errors found in her application, and she had a history

of problems with interpersonal relationships. In addition, the agency

stated that those selected had more direct experience in contracting.

On appeal, complainant contends that the reasons offered by the agency

were a pretext for discriminatory animus because her qualifications far

exceeded those of the selectees. Complainant argues that those selected

either did not have the educational qualifications called for by Office

of Personnel Management (OPM) standards, or they failed to demonstrate

that they had the relevant specialized experience at the next lower

grade level. The agency submitted no additional comments and requests

that we affirm its FAD.

ANALYSIS AND FINDINGS

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). She must

generally 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 Const. Co. v. Waters,

438 U.S. 567, 576 (1978).

The prima facie inquiry may be dispensed with when the agency has

articulated legitimate and nondiscriminatory reasons for its conduct.

United States Postal Servic. Bd. of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (Nov. 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley, v. Department of Veterans Affairs,

EEOC Request No. 05950842 (Nov. 13, 1997).

A review of the record in this case leads the Commission to conclude

that complainant failed to establish that her non-selection was based

on her race. More specifically, complainant failed to demonstrate

that the agency's reasons for not selecting her were a pretext for

discrimination. Complainant argues that her credentials far exceeded

those of the selectees but the record does not support her contention.

Rather, her application reflects that while she has the educational

pre-requisites in terms of a four year degree, both of the selectees,

who were GS-9 Contract Specialists at the time of their applications,

had more experience in contracting called for in the vacancy announcement.

Complainant argues that at least one of the selectees did not meet the

agency's own criteria for promotion within the contracting series, which

required education credits as well as demonstrated specialized experience

in the related field. Although this may have been true, complainant

failed to demonstrate that those initially qualifying the selectees

harbored any discriminatory animus. Moreover, she failed to establish

that those on the interview panel were motivated by discrimination in

ranking complainant's application lower than both of the selectees.

These individuals, to whom the qualifying applications were referred,

stated that they based their recommendations of the best qualified on

the supervisor's statements and ratings and the candidate's experience

in contracting among other things. According to a member of the

interview panel, complainant's experience in the grants application

process was not as directly relevant as the selectees' backgrounds

as purchasing agents and a warranted contract officer respectively.

The record contained the selectees' written applications corroborating

these facts. It also reflected written documentation that complainant's

ratings according to the selection criteria, although good, were not as

high as either selectee. Thus, there was no evidence that the agency's

ratings and ultimate selections were not credible or were a pretext

for discrimination.

Therefore, based on the foregoing findings and considering complainant's

contentions on appeal, the agency's final agency decision, and arguments

and evidence not specifically addressed in this decision, we affirm the

agency's decision finding 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

February 4, 2004

__________________

Date