05A21234
03-04-2003
Carol A. Robinson, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Carol A. Robinson v. Department of the Navy
05A21234
03-04-03
.
Carol A. Robinson,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Request No. 05A21234
Appeal No. 01A01959
Agency No. DON 97-68221-002
Hearing No. 340-98-3881X
DENIAL OF REQUEST FOR RECONSIDERATION
Carol A. Robinson (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Carol A. Robinson v. Department of the Navy, EEOC Appeal
No. 01A01959 (August 14, 2002). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b). For the reasons set forth herein, complainant's request
is DENIED.
The issue presented is whether complainant was discriminated against
on the bases of race (African- American) and reprisal (prior EEO
activity under Title VII) when she was not selected for the position of
Inter-Disciplinary Research Psychologist, GS-14.
During the relevant period, complainant was employed as a Personnel
Research Psychologist, GS-0180-13, at the Navy Personnel Research
and Development Center (NPRDC) in San Diego, California. In June
1997, complainant applied for the position of Inter-Disciplinary
Research Psychologist, GS-14, under Vacancy Announcement No. 96-815
(the position).<1> The complainant, along with six other candidates,
was found qualified, but was not selected.
Three department directors served on a ranking panel that rated the
seven candidates found to be qualified for promotion. Each panel member
rated each of the candidates on the four factors listed on the vacancy
announcement. The ranking panel referred the two top scoring applicants,
who received scores of 57 points and 55 points out of a possible
60 points, to the selecting official (SO) for further consideration.
SO knew all of the candidates because they were in his chain of command,
and selected the selectee (White, prior EEO activity) (the Selectee)
for the position.
Believing she was a victim of discrimination, complainant field a formal
complaint. After complainant was issued the report of investigation,
she requested a hearing before an EEOC Administrative Judge (AJ).
The AJ held a hearing and issued a finding of no discrimination.
The AJ concluded that although complainant established a prima facie
case of race discrimination, she failed to establish a prima facie
case of reprisal because she failed to present evidence of a causal
connection between her non-selection and EEO activity that had occurred
15 years earlier. The AJ then determined that the agency had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
complainant was not the best qualified person for the position,
as evidenced by complainant's ranking of sixth out of the seven
candidates and receiving 43 points while the two candidates referred
for consideration received 57 and 55 points. In addition, the Selectee
produced more original scientific research, had a better record of
enlisting financial and organizational support for the programs he was
assigned, had outstanding presentation skills, and had a better record
of giving technical direction and guidance to employees and contractors
based upon 15 years of experience as a team leader. The AJ noted that a
review of the process used by the agency to make its selection for the
GS-14 promotion did not evidence procedural irregularities which might
call into question the fairness of the selection process and provide a
mechanism for discrimination. The AJ concluded that complainant did
not prove that the agency's nondiscriminatory reasons were pretext
for discrimination. With respect to complainant's claim of disparate
impact,<2> the AJ determined that complainant had failed to present any
evidence to show that an agency practice had a disproportionate effect
on African-Americans. The agency adopted the AJ's finding and issued
a final agency decision finding no discrimination.
Complainant filed an appeal from the final agency decision with
the Commission. In the previous decision, the Commission affirmed
the agency's decision, finding that complainant failed to prove by a
preponderance of the evidence that the agency discriminated against her.
Complainant did not submit any arguments in her request for
reconsideration. The agency requested that the Commission deny
complainant's RTR because she did not meet the criteria.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is
defined as "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding that discriminatory intent did not exist is a factual finding.
See Pullman - Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies, and
laws. We find that complainant failed to present sufficient evidence,
showing that any of the agency's actions were in retaliation for
complainant's prior EEO activity or were motivated by discriminatory
animus toward complainant's race. The record reveals that, although
complainant was qualified for the promotion, she did not score as high as
the Selectee with regard to the factors considered. We note the record
reflects that no one on the ranking panel was aware of complainant's prior
EEO activity, which occurred some fifteen years earlier. In her statement
on appeal in EEOC Appeal No. 01A01959 (August 14, 2002), complainant
maintained that her complaint of disparate impact was established at
the hearing when she testified that she had experienced discrimination
since her appointment in 1981. She further contended that she was the
first African-American professional (PhD) hired, the criteria for the
promotion which involved �relative qualifications� was flawed because
African-Americans had only been with the agency in a professional capacity
since 1981, and using �years of experience at the agency and/or years
as a GS-13 to judge the relative qualifications of an [African-American]
person and a non-[African-American] person was clearly discriminatory.�
We find, however, that complainant provided no evidence, nor was any
found in the record which supported a case of disparate impact. Finally,
we note that years of experience at the agency, was not a factor in the
ranking of the candidates. The Commission discerns no basis to disturb
the AJ's decision. Therefore, we find that the AJ's decision finding no
discrimination was proper.
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01A01959 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
___03-04-03_______________
Date
1 A vacant position did not actually exist, rather the position was an
opportunity for one of the competing candidates to remain in the same
position and accrue higher grade duties.
2 Complainant asserted that the agency's practice of using subjective
hiring criteria and hiring from within the agency instead of recruiting
external applicants had a disparate impact on African-Americans.