Carol I. Reed, Complainant,v.Tom Ridge, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionDec 4, 2003
01A23520 (E.E.O.C. Dec. 4, 2003)

01A23520

12-04-2003

Carol I. Reed, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.


Carol I. Reed v. Department of Homeland Security

01A23520

December 4, 2003

.

Carol I. Reed,

Complainant,

v.

Tom Ridge,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01A23520

Agency No. 2-00-2070

Hearing No. 120-AO-3576X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) 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. The appeal

is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission affirms the agency's final order.<1>

The record reveals that complainant, a Telecommunications Specialist,

GS-12, at the Coast Guard, Telecommunications Division, located in

Norfolk, Virginia, filed a formal EEO complaint on September 13, 1999,

alleging that the agency had discriminated against her on the bases of

race (African-American) and sex (female) when on July 22, 1999, she became

aware that she was not selected for the position of Telecommunications

Manager GS-13, under Vacancy Announcement No. 99-257-1BJ.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

The AJ concluded that complainant established a prima facie case of

race and sex discrimination. The AJ found that complainant applied

and was qualified for the position in question, and the selectee was an

Asian-Pacific male. The AJ further concluded that the agency articulated

legitimate, nondiscriminatory reasons for its action. Specifically,

the AJ found that the selectee had been performing most the duties of

the position and had been performing well, and the selectee had slightly

superior performance evaluations. The AJ found that complainant did not

establish that more likely than not, the agency's articulated reasons

were a pretext to mask unlawful discrimination. The AJ further found

that preselection was exercised in this case; but the preselection was

not, in and of itself, a violation of Title VII.

On appeal, complainant restates arguments previously made at the hearing.

In response, the agency restates the position it took in its final order,

and requests that we affirm its final order.

ANALYSIS AND FINDINGS

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 regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). A complainant must first establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that

a prohibited reason was a factor in the adverse employment action.

McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Furnco Construction

Corp v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate a

legitimate, nondiscriminatory reason for its action(s). Texas Department

of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the

agency has offered the reason for its action, the burden returns to the

complainant to demonstrate, by a preponderance of the evidence, that the

agency's reason was pretextual, that is, it was not the true reason or

the action was influenced by legally impermissible criteria. Burdine,

450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

the complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. U.S. Postal Service

Bd. Of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).

Assuming arguendo, that complainant established a prima facie case of

discrimination based on both her race and sex, the Commission agrees

that the agency articulated a legitimate, nondiscriminatory reason for

its selection. Specifically, we find that the selectee and complainant

were both qualified for the position. The record reveals that they both

had an equal level of experience and training. The record also reveals

that complainant was stronger in her application and her education but

selectee had stronger in supervisory endorsement and in his performance

evaluations. The record further reveals that when the scoring between the

two was a tie, the selecting official used a second recommendation from

supervisors as tie-braker, and that the selectee's second recommendation

was superior to complainant's.

The burden returns to complainant to establish that the agency's

explanation was a pretext for discrimination. We note that in order to

prove pretext, complainant must prove that soliciting a second opinion

from supervisors as a tie-braker was discriminatory, and we find that

complainant failed to do so. We conclude that complainant failed to prove

that she was more qualified than the selectee for the position at issue

or that the selection process was motivated by discriminatory animus.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record,

and we discern no basis to disturb the AJ's decision. 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 agency's final order.

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

December 4, 2003

__________________

Date

1This complaint was originally filed against the Department of

Transportation, Coast Guard. The Coast Guard is now a component of

the Department of Homeland Security.