01A14373
10-30-2002
Carol A. Hector-Harris, Complainant, v. Joseph Allbaugh, Director, Federal Emergency Management Agency, Agency.
Carol A. Hector-Harris v. Federal Emergency Management Agency
01A14373
October 30, 2002
.
Carol A. Hector-Harris,
Complainant,
v.
Joseph Allbaugh,
Director,
Federal Emergency Management Agency,
Agency.
Appeal No. 01A14373
Agency No. 00-010
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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 an External Affairs Specialist, GS-1035-12, at Region II, in New York,
New York. After complainant applied for a job vacancy, and was not
referred for consideration, she sought EEO counseling and subsequently
filed a formal complaint on February 16, 2000. Complainant alleged that
she was discriminated against on the bases of race (African-American),
sex (female), and age (49; D.O.B. unspecified) when:
(1) she was told on October 25, 1999, that she was not selected for
the advertised vacancy of Public Affairs Officer, GS-1035 13/14, Job
Announcement No. R2-99-0037 in Region II on September 3, 1999;
she was unfairly rated and personnel provisions were not used resulting
in her not being placed on the Certificate of Eligible List for the
position, while other applicants were rated higher than their experience
and qualifications merited; and
Region II has established a continuing pattern of discrimination by
nonselection of Blacks and females in full-time permanent positions at
the GS-13 level and above, and their applications are not rated in such
a way as to allow them to compete.
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, as to issue (1), that complainant
established a prima facie case of sex and race discrimination, but
failed to establish a prima facie case of age discrimination in that
the selectee was also over age 40. The FAD assumed, arguendo, that
complainant established a prima facie case of age discrimination, and
found that the agency articulated legitimate, nondiscriminatory reasons
for its action. Specifically, the Deputy Regional Director (D1), who was
also the Acting Director, FEMA Region II, stated that he wanted to select
complainant for the position but that because so many veterans applied
for the position, complainant's opportunity to make the Certificate of
Eligibles was obstructed. The FAD concluded that complainant failed to
establish, by a preponderance of the evidence, that the agency's reason
was pretext for discrimination on the alleged bases.
As to issue (2), the FAD again found that complainant established a prima
facie case of sex and race discrimination, and assumed, arguendo, that
complainant establish a prima facie case of age discrimination. The FAD
further found that the agency articulated legitimate, nondiscriminatory
reasons for its action. Specifically, the Personnel Management Specialist
(P1) explained that the applicants' raw scores are calculated using the
Knowledge, Skills and Abilities (KSA) crediting plan, and then veterans
are given either 5 or 10 additional points. Several applicants who were
veterans received the same scores as complainant, and pursuant to the
Office of Personnel Management's Delegated Agreement, consideration had
to be given to the veterans before complainant could even be considered.
P1 further stated that the �rule of three� applied, and a veteran
would have to decline the offer or withdraw from the process before
a non-veteran could be considered. The FAD concluded that complainant
failed to establish, by a preponderance of the evidence, that the agency's
reason was pretext for discrimination.
As to complainant's allegation that Region II has a continuing pattern of
discrimination by nonselection and unfair rating of Blacks and females,
the FAD found that complainant established a prima facie case of sex and
race discrimination. D1 stated that Region II has made a concerted effort
to open its vacancies to all types of candidates, but has no control
over who applies for, and is found qualified for, these vacancies.
Additionally, the Region has no control over the regulations involving
veterans' preference. The FAD concluded that complainant failed to
establish, by a preponderance of the evidence, that the agency's reason
was pretext for discrimination on the bases of race and sex.
Complainant raises no new contentions on appeal. The agency requests
that we affirm its FAD. As an initial matter we note that, as this is
an appeal from a FAD 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).
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 Construction
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
discrimination on the alleged bases as to her rating and nonselection
for the position in question, we find initially, that the agency has
articulated legitimate, nondiscriminatory reasons for its actions.
We note that even if complainant is correct and the agency did misapply
the veterans' preference, noncompliance with agency procedures does
not, by itself, establish that the agency intentionally discriminated.
We have no authority to enforce the agency's own internal procedures
where, as here, there is no evidence from which we can infer that the
agency's departure from its procedures was motivated by sex, race or
age discrimination. Additionally, even assuming complainant was more
qualified for the position than the selectee, she has not persuaded
the Commission, by a preponderance of the evidence, that the agency's
articulated reasons for not selecting her for the position at issue were
pretext for discrimination based on her sex, race, or age.
To the extent that complainant makes an additional claim of disparate
impact, we find that complainant has failed to establish a prima facie
case. Complainant asserts, in her affidavit, that few individuals
in her protected classes will be hired by the agency because �few
African-American women [her] age would have gained the requisite
military experience, because 20 to 30 years ago, women, let alone
African American women, were not joining the military in large enough
numbers to hold an advantageous or superior position with respect
to the veterans preference/federal employment arena today.� When
establishing discrimination under a disparate impact theory, no evidence
of discriminatory intent is needed. Geller v. Markham, 635 F.2d 1027,
1032 (2d Cir. 1980), cert. denied, 451 U.S. 945 (1981). In general,
to establish a prima facie case of disparate impact, complainant must
show that an agency practice or policy, while neutral on its face, has
a disproportionate impact on members of the protected class. This is
demonstrated through the presentation of statistical evidence that
establishes a statistical disparity that is linked to the challenged
practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977,
994 (1988) (complainant must present "statistical evidence of a kind and
degree sufficient to show that the practice in question has caused the
exclusion"). Specifically, complainant must: (1) identify the specific
practice or practices challenged; (2) show statistical disparities;
and (3) show that the disparity is linked to the challenged practice or
policy. Id. The burden is on complainant to show that "the facially
neutral standard in question affects those individuals [within the
protected group] in a significantly discriminatory pattern." Dothard
v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Department
of the Navy, EEOC Petition No. 03990119 (August 31, 2000). We find
that complainant has failed to establish a prima facie case because she
has not proffered sufficient evidence to demonstrate the existence of
a statistical disparity, or a link between that statistical disparity
and the challenged policy or practice.
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
October 30, 2002
__________________
Date