Rhoda J. Shorter, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionApr 14, 2004
01a32401 (E.E.O.C. Apr. 14, 2004)

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