01a33440
12-23-2004
Loretta Broussard, Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency.
Loretta Broussard v. Equal Employment Opportunity Commission
01A33440
December 23, 2004
.
Loretta Broussard,
Complainant,
v.
Cari M. Dominguez,
Chair,
Equal Employment Opportunity Commission,<1>
Agency.
Appeal No. 01A33440
Agency No. 0-0100073-LA
DECISION
Complainant timely initiated an appeal from a final agency order (FO)
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that she was discriminated against on the bases
of race (African-American), age (52), and reprisal for prior EEO
activity when she was not selected for the position of Investigator,
GS-1810-5/7/9, on or about July 6, 2001. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's FO.
The record reveals that during the relevant time, complainant was employed
as a Investigator Support Assistant (ISA), GS-1810-7 at the agency's Los
Angeles, California District Office (�facility�). A review of the record
demonstrates that in early June of 2001, complainant applied for one
of three positions as an Investigator. Six candidates were found to be
eligible for the Investigator position: two Hispanic females over 40; two
African-American females, one over 40 and one under 40 (S1 and S2); one
non-African-American female over 40 (S3) and complainant. The selectees
for the position were S1, S2 and S3. A panel comprised of the Acting
District Director (ADD) and two middle management officials interviewed
the candidates and the ADD was the selecting official. The ADD signed
the selection certificate on July 6, 2001 and the selection letters were
mailed on July 13, 2001. Complainant alleged that she suspected that
she was not selected for the position sometime around July 6, 2001, and
then met with the ADD on or around July 10, 2001 to inform him that the
other members of the selection panel had given her a favorable evaluation.
Complainant further alleged that she spoke to the ADD again on July 11,
2001 to discuss the Investigator position, and the ADD became �loud
and intimidating� when complainant suggested that she was not selected
for the position due to her age. Investigative Report, Affidavit A.
Complainant also alleged that in response to her raising the issue of
her age, the ADD stated that he had selected S3 (over 40) for one of
the Investigator positions. Id.
Believing she was the victim of discrimination, complainant sought EEO
counseling and filed a formal complaint with the agency on September
11, 2001. At the conclusion of the investigation, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge (AJ) or alternatively, to receive a final decision by the agency.
Complainant requested a hearing before the AJ. Pursuant to the agency's
Motion for Summary Judgment, the AJ issued a preliminary decision on
February 25, 2003, finding no discrimination on the bases of race and
age. However, the AJ stated that she was reserving judgment regarding
the issue of retaliation pending submission of evidence by complainant
which demonstrated that the selection decisions were not made prior to
her conversation with the ADD on July 11, 2000. Subsequently, the AJ
issued a decision finding that complainant had not been discriminated
against on the basis of retaliation on March 13, 2003. In so finding,
the AJ concurred with the agency's contention that all the selections for
the positions at issue took place on July 6, 2001, while complainant's
conversation with the ADD about age discrimination took place after that
date, and complainant had not submitted proof to the contrary.
The agency then issued its FO, initially disagreeing with the AJ's finding
that complainant failed to establish a prima facie case of discrimination
based on race or age. As a result, the agency found that complainant
established a prima facie case of discrimination based on race and age.
However, the FO agreed with the AJ's ultimate finding of no discrimination
with regard to complainant's nonselection for the Investigator position.
In so finding, the FO found that the selectee's performance records
were stronger, and the ADD had concerns about complainant's attendance
record and her job performance as an ISA. Further, the FO noted that the
ADD stated that complainant did not interview well. The FO noted that
one member of the selection panel did not recommend complainant for the
position due to personal knowledge of her work performance, while another
member of the panel stated that complainant did not interview well.
In addition, the FO noted that the three panel members denied making
any decisions based on complainant's race, age or prior EEO activity.
The panel members all expressed misgivings about complainant's ability to
perform successfully in an Investigator position, while they had no such
misgivings about the selectees. The FO then concluded that complainant
presented no persuasive evidence to rebut the agency's evidence or show
that the agency's articulated reasons were more likely than not a pretext
for discrimination. Complainant has made no contentions on appeal.
The Commission initially concurs with the agency's determination that
complainant established a prima facie case of race and age discrimination.
Specifically, we find that complainant established that similarly situated
employees outside her protected groups applied for the Investigator
position and were selected, while she was not selected. However, we find
that the agency articulated legitimate, nondiscriminatory reasons for not
selecting complainant for the Investigator position. In so finding, we
concur with the FO's finding that complainant failed to establish that
her qualifications were plainly superior to those of the selectees.
As noted by the FO, the selectees received Outstanding performance
appraisals, while complainant received a Proficient appraisal, albeit
in an arguably more demanding position. In addition, the ADD and the
other members of the selection panel questioned whether complainant could
perform the duties of the Investigator position, noted problems with her
work performance as an ISA and stated that she had not interviewed well
for the position. The record further establishes that the panel members
had no misgivings about the ability of the selectees to perform the
Investigator position. Finally, we concur with the FO that complainant
failed to establish that the agency's articulated reasons were more likely
than not a pretext for discrimination on the bases of race and/or age.
Addressing complainant's allegation of retaliation, we note that
complainant alleged that the ADD did not select her for the Investigator
position after she suggested in a conversation on July 11, 2001, that
she had not been selected for the position due to her age. A review of
the record establishes that the selections for the Investigator position
were made on July 6, 2001, and the hiring letters were mailed on July
10, 2001.<2> See IR at Tab F-5. These dates were clearly before the
conversation between complainant and the ADD, which complainant alleges
occurred on July 11, 2001. Further, we find that in response to the
AJ's order in her initial decision, complainant was unable to produce
any evidence to suggest that the conversation between herself and the
ADD took place before the selections for the Investigator position
were made. Further, there is no evidence in the record which suggests
that complainant was not selected for the Investigator position due
to retaliation. As a result, we find that complainant has failed to
establish a prima facie case of retaliation regarding her nonselection
for the position at issue.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
December 23, 2004
__________________
Date
1In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from
those offices charged with the in-house processing and resolution
of discrimination complaints. For purposes of this decision, the
term �agency� is used when referring to the respondent party in this
action. The term �Commission' or �EEOC' will be used when referring
to the adjudicatory authority. The Chair has recused herself from
participation in this decision.
2 We note that the Non-Competitive Eligibility Listing form for the
GS-1810-05 Investigator position states that all three (3) selections
for the positions were made on July 6, 2001. See Tab F-5. As such, we
concur with the agency's contention that all the selection decisions were
made a minimum of 5 days before the discussion referenced by complainant
between herself and the ADD. As stated by the agency, the selection of
S1, S2 and S3 for the Investigator positions could not have been made
in retaliation for a conversation that had not occurred.