Stephanie L. Rolle, Complainant,v.Donald L. Evans, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionNov 20, 2001
01993277_r (E.E.O.C. Nov. 20, 2001)

01993277_r

11-20-2001

Stephanie L. Rolle, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.


Stephanie L. Rolle v. Department of Commerce

01993277

November 20, 2001

.

Stephanie L. Rolle,

Complainant,

v.

Donald L. Evans,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01993277

Agency No. 97-56-0227

DECISION

On March 11, 1999, complainant timely appealed to this Commission from

the agency's February 10, 1999 finding of no discrimination in violation

of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq. In her formal complaint, complainant, a GS-7

Secretary, alleged discrimination on the basis of race (African-American)

when she was not selected for a GS-1102-07/09 Procurement Analyst position

at the Patent and Trademark Office, advertised in Vacancy Announcement

(VAN) PTO-96-234.<1>

In its final decision, the agency found that complainant established

a prima facie case of race discrimination, since a Caucasian woman was

selected for the position. However, the agency found that the agency

articulated a legitimate, nondiscriminatory reason for its actions,

and complainant failed to prove that the articulated reason was pretext.

Specifically, the agency noted that the selectee had a �strong working

knowledge of procurement and supervisory skills.� It also found that the

selecting official (S.O.) sought applicants with �demonstrated relevant

procurement experience,� while much of complainant's work experience

involved clerical duties.

On appeal, complainant argues that she was more qualified than the

selectee. She notes that her score on the merit program certificate

was higher, and that she has worked closely with contract specialists

on substantive procurement duties. Complainant also contends that she,

unlike the selectee, was taking classes to obtain her �procurement

certificate.� Complainant argues that the selectee's application only

reveals a �passing� knowledge of procurement activities, and asserts

that the selectee's prior position did not involve procurement activities.

In his affidavit, the S.O. explained the selection process as follows:

Approximately sixty individuals applied for the vacancy, and were

ranked by a three person panel to find the �best qualified.� The panel

certified sixteen applicants as best qualified, including complainant.

The S.O. then interviewed each of the best qualified individuals, and

narrowed the field to four individuals, not including complainant. The

four finalists included three African-American females, and the selectee.

After speaking with the finalists' supervisors, the S.O. narrowed the

field again to the selectee and one African-American applicant. He chose

the selectee based on her demonstration of procurement knowledge during

her interview, her supervisory experience, and the recommendation of

her supervisor.

After establishing the prima facie case, the burden of production shifts

for the agency to articulate a legitimate, nondiscriminatory reason

for its actions. See Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 254 (1981). If the agency satisfies its obligation,

the burden of production shifts back to complainant, to show by

preponderance of the evidence that the agency's articulated reason was a

pretext for discrimination. See id. Complainant may meet her burden by

showing that a discriminatory reason more likely motivated the agency,

or indirectly, by showing that the agency's proffered explanation

is unworthy of credence. See id. at 256. In nonselection cases,

complainant may demonstrate pretext by showing that her qualifications

are �observably superior� to those of the selectee. See Williams

v. Department of Education, EEOC Request No. 05970567 (August 6, 1998)

(citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981)).

In the present case, complainant failed to show that the agency was

motivated by discriminatory reasons when it did not select complainant for

the position - although complainant was not a finalist for the position,

three others from her protected group were. Further, she failed to show

that the agency's reason was not worthy of belief. She also presented

insufficient evidence to indicate that her qualifications were observably

superior to those of the selectee. Therefore, complainant failed to show

that the agency's articulated reason was a pretext for discrimination.

CONCLUSION

Accordingly, the agency's decision is AFFIRMED.

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

November 20, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1It appears that complainant's non-promotion claim may be part of a class

complaint certified by the Commission in Howard, et al. v. Department of

Commerce, EEOC Request No. 05A01214 (February 26, 2001). Although such

claims ordinarily are subsumed into the class claim, the Commission

finds that it is appropriate to address the merits of complainant's claim

under the present circumstances. In this regard, we note that, because

of the time that has past since these matters occurred, the interests

of judicial economy are best served by our addressing this matter.