02A00006
07-29-2002
Agency
Penny L. Hensley v. Department of Treasury
02A00006
July 29, 2002
.
Penny L. Hensley,
Grievant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency
Appeal No. 02A00006
Agency No. MCCG-9816
DECISION
Grievant timely initiated an appeal of a final arbitrator decision
(FAD) concerning her grievance of unlawful employment discrimination
on the basis of disability (deaf) in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. For the reasons stated herein, the arbitrator's
FAD is affirmed.
Grievant worked as a GS-7 Computer Assistant in the Information Returns
Branch (IRB) of a West Virginia facility of the agency. In December 1997,
grievant applied for promotion to a GS-7/8/9 Computer Assistant position
in IRB. Grievant ranked number one of the top five candidates listed
on the position's Best Qualified (BQ) list, and shortly thereafter,
interviewed for the position before a three-member panel (panel).
The panel asked all five candidates the same ten questions during
the interview. The agency provided grievant with an interpreter for
her interview.<1> The panel ranked grievant fourth or fifth following
the interview stage, and ultimately selected two other candidates for
vacancies (selectees). The two candidates were validated by the selecting
official (SO). Grievant, believing she was a victim of discrimination,
filed a grievance under the negotiated grievance procedure established by
the agency and representative union, which reached arbitration. Grievant,
in her grievance, alleged that the agency discriminated against her based
on disability when it failed to select her for the GS-7/8/9 Computer
Assistant position. Specifically, grievant stated that the Computer
Assistant position required a substantial amount of telephone usage
and the SO was concerned about how taxpayers would respond to using
a telephone service designed to communicate with deaf individuals.
Grievant alleged further that the agency failed to provide her with a
satisfactory interpreter and that unsatisfactory interpreter services
contributed to her non-selection.
The agency stated that grievant was not selected because she performed
poorly in her interview. Specifically, the agency stated that grievant
gave short, terse, and sometimes negative responses to questions
and seemed the least prepared for her interview. In addition, the
panel members noted that grievant failed to inform them that there
was a problem with the interpreter during the interview. The agency
explained further that both selectees showed enthusiasm and initiative
for the position and were better qualified than complainant for the
position, all of which was displayed by their full preparedness for
their interviews. The agency issued a Step 1, Step 2, and then a Step
3 decision. All three decisions denied grievant's grievance and found
no discrimination. Grievant's grievance went before an arbitrator who
denied it and found no discrimination. This appeal by grievant followed.
When a grievant relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the grievant to establish a prima facie case
of discrimination. Id. at 802. The burden then shifts to the agency to
articulate some legitimate, nondiscriminatory reason for its challenged
action. Id. If the agency is successful, the grievant must then prove,
by a preponderance of the evidence, that the legitimate, nondiscriminatory
reason articulated by the agency is merely pretext for its discrimination.
McDonnell Douglas, 411 U.S. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason for
what occurred, i.e., grievant's poor interview performance, we may proceed
directly to determining whether grievant satisfied her burden for showing
pretext.<2> Haas v. Department of Commerce, EEOC Request No. 05970837
(July 7, 1999)(citing U.S. Postal Service Board v. Aikens, 460 U.S. 711,
713-14 (1983)). Grievant may do this in one of two ways, either directly,
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. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981). Essentially, the fact finder must be persuaded
by the grievant that the agency's articulated reason was false and that
its real reason was discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 515 (1993).
The Commission finds that grievant failed to establish pretext. The
record is void of objective evidence which would suggest that grievant
performed better during her interview or was better qualified than the
selectees. �It is not the function of this Commission to substitute
its judgment for that of a selecting official familiar with the present
and future needs of his [or her] facility and therefore in a better
position to judge the respective merits of each candidate . . . unless
other facts suggest that proscribed considerations entered into the
decision making process.� Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996)(citing Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981); Jenkins v. Department of Interior,
EEOC Request 05940284 (March 3, 1995)). Furthermore, we note that
grievant did not inform the panel during the interview or immediately
afterwards that the accommodation it provided, i.e., the interpreter,
was ineffective. The record as a whole does not support grievant's
contentions of discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the FAD because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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).
GRIEVANT'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
July 29, 2002
__________________
Date
1Based on the record, the interpreter was provided by the agency's Equal
Employment Opportunity office.
2For the purpose of this decision, the Commission will assume that
grievant is covered by the Rehabilitation Act.