0120120749
11-23-2012
Zoe Berry, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Zoe Berry,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120749
Agency No. ARSILL09JUN02496
DECISION
On February 22, 2011, Complainant filed an appeal from the Agency's November 18, 2010, final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accounting Technician at the Agency's Reynolds Army Community Hospital facility in Fort Sill, Oklahoma.
On July 21, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and age (54) when she was not selected for the position of Budget Analyst GS-560-07/09.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The record in this matter indicates that Complainant applied for and was found eligible for the Budget Analyst position at issue. The record further indicates that the selection process involved a review of the resumes submitted for the position, against specific experience criteria including analysis, budget execution, and financial knowledge in the area of travel. At the time of the selection, the selecting official had no knowledge of the race, or age of the candidates for the position. The record indicates that the selecting official received a web based referral list dated March 23, 2009 containing 17 names, including Complainant's which did not identify the race or age of any of the candidates. In its final agency decision, the Agency found that Complainant failed to state a prima facie case of discrimination as alleged. Specifically, the record evidence demonstrates that Complainant applied for and was deemed qualified for the position, despite her qualifications, was rejected. In addition, the record indicates that while the selectee was outside of Complainant's protected classes, there is no evidence of record to establish that the selecting official was aware of the race or age of the candidates for the Budget Analyst position.
Assuming arguendo, however, that Complainant had established a prima facie case of discrimination based on race and age, the record demonstrates that the Agency articulated legitimate, nondiscriminatory reasons for its actions. According to the Agency, the best candidate for the position would have experience in the area of government travel because the successful candidate would handle travel orders for military personnel. The selecting official indicates that the selectee was chosen because she possessed an employment background which included experience in travel and Permanent Change of Station entitlements which involved assisting military personnel in relocating duty stations. In addition, the record indicates that as part of the selection process, the Agency employed a matrix to rank applicants across different criteria and then ranking applicants according to their score obtained. According to the Agency, the candidate with the highest ranking based on the matrix ranking process accepted another position. The selectee in this matter held the next highest ranking score. Complainant was ranked fourth based on her employment background which dealt primarily with supply and logistics. The Agency indicates that the selectee possessed the most relevant broad experience level required for the position.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Here, we agree with the Agency's finding of no discrimination. To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of discrimination based on race and color by demonstrating that (1) she is a member of a protected class, (2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); and EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996).
Assuming that Complainant satisfied the above elements to establish a prima facie case, the Agency successfully rebutted that initial inference of discrimination with its articulation of legitimate, nondiscriminatory reasons for the selection made. Complainant has failed to meet her burden of proving, by a preponderance of the evidence, that the Agency's proffered reasons were a pretext making discrimination. We note that in non-selection cases, pretext may be found where the complainant's qualifications are demonstrably superior to the selectee's. See, e.g., Hickman v. Department of Justice (Drug Enforcement Administration), EEOC Appeal No. 01A11797 (December 20, 2001). In this case, while Complainant's qualifications are impressive, she has not established that they are "demonstrably superior" to the selectee, such that it is clear that Complainant should have been selected over her. Accordingly, we find that Complainant has not established pretext on any alleged basis.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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 (November 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
November 23, 2012
__________________
Date
2
0120120749
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120749