01a51619
04-28-2005
Wanda J. Ingram, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Appeal No. 01A51619 Agency No. 03-0369
Wanda J. Ingram v. Department of Homeland Security
01A51619
April 28, 2005
.
Wanda J. Ingram,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Appeal No. 01A51619
Agency No. 03-0369
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 Part-Time Temporary, Office Automation Assistant at the
agency's Civil Aviation Security Division facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on November 7,
2002, alleging that she was discriminated against on the bases of race
(African-American), sex (female), and in reprisal for prior EEO activity
when:
(1) she was not selected for the position of Executive Secretary in
September 2002 and
she was terminated from her temporary position on September 20, 2002.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that there were legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency found
that complainant was not eligible for non-competitive consideration for
a permanent, full-time position because she was a part-time, temporary
employee. The agency noted that complainant would have had to apply for
the Executive Secretary position to be considered, but she failed to apply
for that position or any others. The FAD also found that management
had no budgetary or manpower authority to carry over any part-time,
temporary employees. The FAD further concluded that complainant did
not establish that any of the articulated reasons were a pretext for
discriminatory animus and/or retaliatory motive.
On appeal, complainant raises no new contentions. The agency did not
file a response.
Although the initial inquiry of discrimination 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 she has demonstrated by
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).
The record evidence shows that the subject position was advertised
and complainant failed to apply. The record also indicates that the
selectee was the same race as complainant. The uncontroverted record also
establishes that the agency possessed no authority to noncompetitively
promote complainant.
Because the agency has articulated a legitimate, nondiscriminatory
reason for the non-selection, complainant must show that the reasons
are a pretext for discriminatory animus or retaliatory motive. In a
non-selection case, pretext may be demonstrated in a number of ways,
including a showing that complainant's qualifications are observably
superior to those of the selectee(s). Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). However, an employer has the discretion to choose
among equally qualified candidates. Canham v. Oberlin College, 666 F.2d
1057, 1061 (6th Cir. 1981). In the instant case and despite her arguments
to the contrary, we find that complainant has not presented sufficient
evidence that the agency's reasons for not selecting her or for removing
her, were based on discriminatory animus and/or retaliatory motive.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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 28, 2005
__________________
Date