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.