01a32401
04-14-2004
Rhoda J. Shorter, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Rhoda J. Shorter v. Department of Transportation
01A32401
April 14, 2004
.
Rhoda J. Shorter,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A32401
Agency No. 2-02-2064
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her formal 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 Transportation Program Specialist (GS-2101-14) at the agency's Office
of Resource Management and State Programs (ORMSP). Complainant sought
EEO counseling and subsequently filed a formal complaint on April 18,
2002, in which she alleged she was discriminated against on the basis
of race (African-American) when she was not selected for the position of
Supervisory Transportation Program Specialist (GS-2101-15) on November 19,
2001, announced in Vacancy Announcement No. FTA-0059DEU01. The complaint
was accepted for investigation. At the conclusion of the investigation,
the agency issued a final decision on the matter.
In its decision, the agency concluded that complainant had not been
discriminated against as alleged. Specifically, the agency concluded that
although complainant had established a prima facie case of discrimination,
she failed to present preponderant evidence indicating that the agency's
stated reasons for the non-selection was a pretext or to cover-up
discriminatory animus toward complainant's race. Complainant appealed
the agency's decision to this Commission.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether s/he has
demonstrated by a preponderance of the evidence that the agency's
reasons for its actions merely were a pretext for discrimination. Id.;
see also United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 714-717 (1983). Here, we find that the agency has stated
legitimate, nondiscriminatory reasons for its action. Specifically,
the agency stated that complainant was not selected in favor of the
selectee because the selectee exhibited a wider range and more in-depth
knowledge of the understanding of a multitude of issues relating to
the Federal Transit Administration grant programs. The agency further
stated that the selectee expressed more ideas than complainant on how
to manage the diverse functions of the ORMSP, and how to address the
array of issues faced by the office. Finally, the agency stated that
the selectee's problem-solving, analytical, and communication skills
were stronger than those of complainant's, and that of the five persons
(one of whom was complainant) interviewed for the position, the selectee
possessed the strongest combination of knowledge, skills, and abilities
required for the job.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory action, complainant now bears the
burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In attempting to satisfy this burden, complainant cited her 15 years
of experience, and bachelor and masters degrees. Moreover, she argued
that she was more qualified for the subject position than the selectee.
Complainant also provides statistical data regarding how many Whites were
in management positions compared to Blacks, the race composition of the
various interview panels by which she was interviewed. Complainant has
provided no information outside of her mere opinion that she was better
suited for the position than the selectee. The remaining arguments and
information put forth by complainant do not suggest to this Commission
that her non-selection was discriminatory.
On appeal, complainant argues that the vacancy announcement did not
mention the need for the successful incumbent to have supervisory
experience. She further argues that this omission was done so that the
selectee would qualify for the job. Although there is no evidence to
support this particular argument, it is not the job of this Commission to
dictate to agencies what qualifications to put in their job announcements,
so long as those qualifications are not discriminatory. Complainant also
argues that the investigation was not adequate because there are a variety
of issues (i.e., conflicting information; investigation was limited to
obtaining affidavits from only four people; even though the investigation
of her complaint began on May 30, 2002, she was not contacted until July
18, 2002; among other things) that were not addressed. Upon review, this
Commission can find no evidence indicating the agency's investigation
of this matter was not sufficient.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response thereto, and arguments and
evidence not specifically addressed in this decision, we hereby affirm
the agency's final decision.
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
April 14, 2004
__________________
Date