0120064888
05-01-2008
Brenda M. Jackson, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior (Bureau of Reclamation), Agency.
Brenda M. Jackson,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Appeal No. 01200648881
Agency No. WBR05061
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 3, 2006, 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.
At the time of the events herein, complainant worked as a Secretary,
GS-318-7, in the Program and Budget Liaison Group, in Washington, D.C.
She claimed discrimination based on race (African-American) when she was
not selected for the position of Program Analyst, GS-343-7/9, in May
2005, in favor of a Caucasian employee.2 Following an investigation,
complainant requested a final agency decision (FAD), and the agency
issued a FAD, finding that it did not discriminate against complainant.
The agency, through the selecting official, the Supervisory Budget
Analyst (SO), stated that he and the other supervisor interviewed five
candidates using a structured interview format, asking each candidate
the same questions. The SO stated that they chose the selectee, because
she displayed specific knowledge of the Bureau's budgetary process,
keen analytic skills, demonstrated abilities to work independently and
in a team, and had both a Batchelor's and Master's degrees from the
University of Colorado. In regard to complainant, the SO stated that
she had a limited knowledge of the Bureau's budgeting process and weaker
analytic and interpersonal skills. In addition, he noted that she had
limited education above the high school level. The agency concluded that
it articulated legitimate, nondiscriminatory reasons for its actions, and
complainant did not demonstrate pretext. Although complainant contended
that the selectee was favored, because she filled a two-week detail in
the position, the SO and other supervisor stated that the selection was
based solely on the selectee's excellent skills.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
In the case of a nonselection, the Commission utilizes the
comparative qualification standard to determine whether a selection was
discriminatory. The comparative qualifications standard provides that
"disparities in qualifications must be of such weight and significance
that no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over [complainant] for the
job in question." Ash v. Tyson Foods, Inc., 190 Fed. Appx. 924, 88
Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154
(Jan. 22, 2007). Applying these standards to this matter, we find that
complainant has not demonstrated that her qualifications were of such
weight and significance that no reasonable person could have chosen the
selectee over complainant. As such, we find that complainant failed to
demonstrate pretext.
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, 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.
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
____05-01-2008______________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 Complainant also raised four other issues, however, on February 23,
2006, the agency dismissed three for untimely EEO contact and one for
failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(2) and 29
C.F.R. � 1614.107(a)(1). The Commission affirms the agency's action
dismissing these matters.
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0120064888
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036