0120082612
07-11-2012
Veronica L. Whitfield, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Veronica L. Whitfield,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082612
Agency No. ARBRAGG07MAY01863
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the May 1, 2008 final Agency decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Support Assistant in the Agency's Directorate of Logistics in the Transportation Division, Traffic Movements Branch at Fort Bragg, North Carolina. On June 26, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when:
1. On May 1, 2007, Complainant became aware that she was not selected for the position of Transportation Operations Specialist under Vacancy Announcement No. SCDN07923015; and
2. On May 17, 2007, Complainant became aware that she was not selected for the position of Quality Assurance Specialist under Vacancy Announcement No. SCDN07757914.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested that the Agency issue a FAD, and, in accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).
In the FAD, the Agency initially determined that Complainant had established a prima facie case of race discrimination. Next, the Agency found that it had articulated legitimate, nondiscriminatory reasons for Complainant's nonselections. Specifically, as to the Transportation Operations Specialist position, Complainant was not selected because the Agency selected the highest-rated candidate and Complainant was rated fifth out of the ten candidates. The established rating criteria were based on required and desired skills for the position as shown in the vacancy announcement and the position description. The selectee worked in the transportation motor pool, where the vacancy occurred. The selectee had directly assisted the person who last held the position, and she gained experience and continued to perform the duties until the position was filled.
As to the Quality Assurance Specialist position, the Agency contended that Complainant was not selected because she was the fourth-rated candidate. The highest-rated and second highest-rated candidates declined the position while the third-ranked candidate accepted the offer. The Agency stated that the selectee gained experience directly related to the position in a past job.
The Agency concluded that the record did not support a finding that Complainant's qualifications were demonstrably superior to those of the selectees. Accordingly, the Agency determined that Complainant had failed to establish that its reasons were pretextual. As a result, the Agency found that Complainant had not established that she was discriminated against as alleged. Complainant submitted no arguments or contentions on appeal.
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr, Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248. 256 (1981).
In the instant case, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. As to claim (1), the selecting official (SO1) stated that Complainant was not selected for the position because she was not the highest-rated candidate based on the submitted resumes and the required and desired skills for the position. ROI, Fact-Finding Conference (FFC), at 46-48. More specifically, SO1 noted that the selectee had extensive transportation motor pool experience which was a required and desired skill while Complainant's resume did not reflect such experience. Id. at 59. Further, the selectee had experience in assisting the person who held the position previously and had performed some of the duties. Id. at 51.
Regarding claim (2), the selecting official (SO2) affirmed that Complainant was not selected because she was not the highest-ranked candidate. After reviewing the resumes and applying the scoring matrix based on the position description, Complainant was ranked fourth. ROI, FFC, at 27. The first and second-ranked candidates declined the position; therefore, the third highest-ranked candidate was offered and accepted the position. Id. at 25-29. The record reveals that the selectee had more previous experience directly related to the position at issue and was rated higher than Complainant. ROI, at 129; 159-66.
At all times, the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. One way Complainant can establish pretext is by showing that her qualifications are "plainly superior" to those of the selectees. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant has failed to carry this burden. A review of the considered candidates' applications does not reveal that Complainant's qualifications for the positions were plainly superior to those of the selectees.
The Commission notes that an employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Here, the weight of the evidence reveals that the selecting officials chose the selectees because they believed the selectees were better qualified and would be better equipped to meet the Agency's needs. Complainant failed to rebut with any evidence that would undermine the Agency's explanation. Thus, the Commission finds no evidence in the record which would support a finding that the selections were tainted by discriminatory animus or that the reasons articulated by the Agency for its selections were mere pretext to hide unlawful discrimination. Accordingly, the Commission finds that Complainant has failed to show that she was discriminated against as alleged.
CONCLUSION
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 11, 2012
Date
2
0120082612
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120082612