Carolyn H. Lucas, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 30, 2005
01a43697 (E.E.O.C. Mar. 30, 2005)

01a43697

03-30-2005

Carolyn H. Lucas, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Carolyn H. Lucas v. Department of the Army

01A43697

3/30/05.

Carolyn H. Lucas,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A43697

Agency No. ARJDHQS02MAY007

Hearing No. 130A38245X

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 in part and REVERSES in part.

I. BACKGROUND

The record reveals that complainant, at the time a Contract Specialist at

the agency's Close Combat Missile System facility in Redstone Arsenal, AL,

filed a formal EEO complaint on May 14, 2002, alleging that the agency

had discriminated against her on the bases of race (African-American),

sex (female), and reprisal for prior EEO activity when:

(1) On or about December 3, 2001, the Project Manager for the Precision

Fires, Rockets, and Missile Systems (PFR&MS) Project Office cancelled

Complainant's interview for the position of Deputy Project Manager,

Block II;

On or about December 4, 2001, Complainant learned that the Pay Pool

Manager and former Director of the Acquisition Career Management Office

(ACMO), lowered her Contribution-Based Compensation and Appraisal System

(CCAS) score for the period October 1, 2000 through September 30, 2001;

On or about December 11, 2001, Complainant learned that interviews had

been conducted for a GS-14 Supervisory Program Analyst position (Referral

List Number 11-2002-0050-01) in the Close Combat Missile Systems (CCMS)

Project Office, and that she was not one of the candidates interviewed;

On or about December 11, 2001, the Complainant learned that interviews

had been conducted for a GS-14 Supervisory Operations Research Analyst

position (Referral list Number 11-2002-0062-01) in the CCMS Project

Office, and that she was not one of the candidates interviewed;

On or about December 27, 2001, the Complainant learned that [a white-male

coworker] was temporarily promoted to the GS-14 position of Chief,

Cost Analysis Branch in the Precision, Fires, Rockets, and Missiles

Systems (PFR&MS) Project Office, a position for which Complainant was

highly qualified;

On or about January 8, 2002, the Complainant learned that [a white-female

coworker] had received a temporary promotion to GS-14 as acting Chief,

Financial Management Branch in the PFR&MS Project Office, a position

for which the complainant was highly qualified; and

On or about February 11, 2002, Complainant received from the Director of

the Acquisition Support Center (ACS) a management-directed reassignment

(MDR) to a GS-1102-13 Contract Specialist position, the duties of

which she alleges had previously been performed by two GS-12s and were

therefore regressive.<1>

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ remanded the case to the agency

for issuance of a Final Agency Decision (FAD) pursuant to 29 C.F.R. �

1614.109(f)(3)(v), because complainant did not comply with Section III

of the AJ's Scheduling Order dated August 4, 2003.

The FAD found that complainant did not establish a prima facie case of

race or sex discrimination because she failed to demonstrate that she

was treated less favorably than other calendar-year 2000 Competitive

Development Group graduates not of her protected groups.

The FAD found that complainant did establish a prima facie case of

discrimination based on reprisal because she had recently engaged in

prior EEO activity of which her superiors were aware.

The FAD further stated that the agency articulated legitimate,

nondiscriminatory reasons for its actions. The agency found that

complainant was ineligible for the positions referred to in allegations

(1), (4), (5), and (6). The agency found that complainant's appraisal

was lowered, as described in allegation (2), because all the scores

were re-scaled for administrative reasons. The agency also found that

complainant was unqualified for the position referred to in allegation

(3). Lastly, the agency concluded that complainant's MDR as described

in allegation (7) occurred for administrative reasons unrelated to her

race, sex, or prior EEO activity.

The agency found that complainant failed to present any evidence other

than her initial assertions to establish that more likely than not,

the agency's articulated reasons were a pretext to mask unlawful

discrimination/retaliation.

On appeal, complainant contends that she has established a prima facie

case of discrimination on the basis of race, sex, and retaliation.

Complainant argues that the testimony of her coworkers proves that she was

generally treated differently than similarly situated white employees.

Complainant notes that comprehensive comparative data on other CDG

graduates is not in the record because the agency failed to provide it

in response to the investigator's requests. With regard to allegations

(2), (3), and (4) specifically, complainant argues that the agency's

nondiscriminatory reasons for management's actions are implausible and

she challenges the credibility of her supervisors' testimony. Complainant

also states that the proximity in time of Complainant's prior EEO activity

to the negative employment actions alleged in her complaint prove that any

nondiscriminatory explanation is merely pretext for unlawful retaliation.

In response, the agency requests that we affirm its final order,

restating the position it took in its FAD that complainant was required

but failed to show that she was treated differently than a similarly

situated 2000 graduate of the CDG program. The agency, furthermore,

reiterated its nondiscriminatory reasons stated in the FAD to explain

each of the allegations. The agency changed its position with regard to

complainant's retaliation claim, however, arguing that she had failed

to establish a prima facie case in allegations (1) and (3) because

the relevant supervisors did not know of her prior EEO activity, in

allegations (4), (5), (6) because complainant failed to identify the

responsible supervisor, and in allegation (7) because it was not a

negative employment action.

After a careful review of the record, the Commission finds that the

agency's finding of no discrimination was appropriate for allegations

(1), (2), (3), (4), and (7). The Commission, however, issues findings

of discrimination for allegations (5) and (6).

II. LEGAL STANDARD

The Commission's decision on appeal from an agency's final decision shall

be based on de novo review of the law and the facts. 29 C.F.R. �1614.405.

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). Complainant

must initially establish a prima facie case by demonstrating that he or

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). Proof of a prima facie case

will vary depending on the facts of the particular case. McDonnell

Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency

to articulate a legitimate, nondiscriminatory reason for its actions.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981). To ultimately prevail, complainant must prove, by a preponderance

of the evidence, that the agency's explanation is pretextual. 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); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

To establish a prima facie case of discrimination based on race or sex,

complainant may show: (1) that she is a member of a protected group; (2)

that she was adversely affected by an agency personnel decision, action

or change; and (3) that she was treated less favorably than similarly

situated individuals outside her group or, in the alternative, that there

is some other evidence raising an inference of discrimination.<2> See

O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996);

Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,

EEOC Notice No. 915.002 (September 18, 1996).

In a claim of non-selection or non-promotion, specifically, complainant

may show: (1) she is a member of a protected class; (2) she was qualified

for the position at issue; (3) she was not selected for the position, and

(4) an individual outside the protected classes was selected. Williams

v. Department of Education, EEOC Request No. 05970561 (August 6, 1998);

Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,

EEOC Notice No. 915.002 (September 18, 1996).

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he or she was subjected to adverse treatment by the agency; and (4) a

nexus exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

III. ANALYSIS

(1) On or about December 3, 2001, the Project Manager for the Precision

Fires, Rockets, and Missile Systems (PFR&MS) Project Office cancelled

Complainant's interview for the position of Deputy Project Manager,

Block II.

The prima facie inquiry may be dispensed with for this allegation

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).

Complainant fails to do so for this allegation. The Project Manager

claims that, after announcing the availability of the position, he

realized he had made a mistake regarding what type of agency employee

was eligible for the position. The position could only be filled

with military personnel or an employee from a �matrix� organization.

He subsequently cancelled all interviews of those applicants, including

the complainant, whose employment status made them ineligible for hire.

The record does not support a finding that the Project Manager's reason

is a mask for discriminatory intent. The Project Manager admitted that

he made an administrative error when originally announcing the vacancy

and denied any discriminatory animus. His testimony appears credible

considering that two of five similar positions under the Project Manager

in Block II are occupied by African-Americans. One of complainant's

fellow graduate of the CDG program confirmed that CDG's are only eligible

for agency-wide employment positions.

On or about December 4, 2001, Complainant learned that the Pay Pool

Manager and former Director of the Acquisition Career Management Office

(ACMO), lowered her Contribution-Based Compensation and Appraisal System

(CCAS) score for the period October 1, 2000 through September 30, 2001;

The prima facie inquiry may be dispensed with for this allegation since

the agency has articulated legitimate and nondiscriminatory reasons for

its conduct. See Aikens, supra. To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. See Reeves, supra.

Complainant does not successfully rebut the agency's nondiscriminatory

reason for lowering her CCAS score. The record reveals that the Pay

Pool Manager adjusted everyone's CCAS score in order to normalize the

range of awards distributed. No individual consideration was given to

complainant's score in the process. Complainant argues that because

her score was not on either extreme of the range of scores that it

should not have been subject to normalization. The Pay Pool Manager's

testimony regarding the process of normalization is, however, more

credible considering his expertise and the complainant's lack thereof

on the subject. The complainant has, therefore, failed to prove that

score normalization was a pretext for discrimination based on race, sex,

or reprisal.

On or about December 11, 2001, Complainant learned that interviews had

been conducted for a GS-14 Supervisory Program Analyst position (Referral

List Number 11-2002-0050-01) in the Close Combat Missile Systems (CCMS)

Project Office, and that she was not one of the candidates interviewed.

The prima facie inquiry may be dispensed with for this allegation since

the agency has articulated legitimate and nondiscriminatory reasons for

its conduct. See Aikens, supra. To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. See Reeves, supra.

Complainant failed to show that the agency's explanation is

pretextual. The hiring supervisor testified that his error was accidental,

that he had forty-eight resumes to read and in the process inadvertently

missed this detail. After re-scoring the complainant's application

she scored in fifth place for the position. Out of a need to hire

someone who could fully assume the duties of the position immediately,

the supervisor ultimately hired the employee who had been filling the

position temporarily at the time.<3>

Complainant contends that the supervisor's error was intentional.

To support her assertion she cites what she characterizes as suspicious

behavior by the supervisor. While assessing complainant's application

for a later job opening, the supervisor gave her half the points for

prior experience than he did for the application that is the subject

of this allegation. The scores for complainant's relevant experience

may have differed, however, because the positions differed in their

responsibilities. By failing to addressing this possibility and without

further evidence that the scoring deviation was a result of discriminatory

intent, complainant failed to show by a preponderance of the evidence

that the hiring supervisor had an intent to discriminate on the basis

of race, sex, or reprisal.

On or about December 11, 2001, the Complainant learned that interviews

had been conducted for a GS-14 Supervisory Operations Research Analyst

position (Referral list Number 11-2002-0062-01) in the CCMS Project

Office, and that she was not one of the candidates interviewed.

Allegation (4) is dismissed for failure to state a claim because

complainant did not apply for the position. Hailer v. Dept. of the

Air Force, EEOC Appeal No. 01A40961 (March 12, 2004). �A complainant

is only aggrieved in such claims where a complainant alleges that the

agency discouraged her from applying; or that the application process

was secretive.� Id. (citing Ozinga v. Dept. of Veterans Affairs, EEOC

Request No. 05910416 (May 31, 1991)). The record reveals considerable

confusion over the details of this allegation. It is undisputed,

however, that complainant was placed on a list of candidates for the

position but failed to reply when contacted for further consideration.

Complainant does not claim that she was discouraged or kept unaware

of the position and, therefore, the allegation fails to state a claim.

Hailer, supra.

On or about December 27, 2001, the Complainant learned that [a white-male

coworker] was temporarily promoted to the GS-14 position of Chief, Cost

Analysis Branch in the Precision, Fires, Rockets, and Missiles Systems

(PFR&MS) Project Office, a position for which Complainant was highly

qualified.

The Commission finds that the agency failed to sufficiently rebut

complainant's prima facie case of discrimination based on race and sex.

Complainant established a prima facie case of discrimination based on

race and sex by showing that she was qualified for the position and that

a similarly situated employee of a different race and sex was selected.

The record shows that a white-male was non-competitively selected for

a temporary promotion to this GS-14 position. No documentation of his

qualifications exists in the record. Complainant avers that she was

highly qualified to serve a temporary shift in this GS-14 position.

A coworker, a fellow CDG graduate, and the hiring supervisor for

allegations (3) and (4) confirm that complainant is qualified for GS-14

positions.

Complainant also produced background evidence strengthening an

inference of discrimination. Complainant testified that in her

observation white employees were always given such temporary promotions

over African-Americans. One of complainant's coworkers and one of her

fellow CDG graduates agreed with her perception. During the fact-finding

conference both testified that they had been at the GS-13 level for

over ten years and expressed the opinion that if they were white they

would have been promoted to GS-14 long ago. Complainant's fellow

CDG graduate also noted that she and complainant were the only CDG's

remaining from their class whom had not been promoted to the GS-14 level.

Complainant, additionally, provides statistical evidence showing minority

(African-American, Latino, and Asian) employees are under-represented at

the GS-14 level. While minorities compose 26% of the agency's civilian

workforce, they only compose 11% of civilians working at the GS-14 level.

The agency may rebut complainant's prima facie case by clearly setting

forth, through the introduction of admissible evidence, its reasons

for not selecting complainant. Texas Department of Community Affairs

v. Burdine, 450 U.S. 248, 254-255 (1981). The agency's explanation

must be sufficiently clear to raise a "genuine issue of fact" as to

whether discrimination occurred. Burdine, 450 U.S. at 254. Moreover,

it must "frame the factual issue with sufficient clarity so that

[complainant] will have a full and fair opportunity to demonstrate

pretext." Id. at 255-256; Parker v. United States Postal Service, EEOC

Request No. 05900110 (April 30, 1990) (citing Burdine, 450 U.S. at

256); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)

(citing U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,

716 (1983) and Burdine, 450 U.S. at 256). While the agency's burden of

production is not onerous, it must nevertheless provide a specific,

clear, and individualized explanation for the treatment accorded the

affected employee.

Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November

6, 1997).

Here, the agency has failed to meet this burden. Its explanation is

general, vague, and highly speculative, and therefore fails to raise

a genuine issue of fact. The agency states that it made its selection

pursuant to its policy allowing supervisors to temporarily promote an

employee non-competitively for no greater than 120 days. The agency,

however, provides no specific evidence regarding the selector, the

selection criteria, or the selection decision itself. The Project

Manager of the PFR&MS Project Office, the office in which the position was

located, admits that he was not the selecting official for the position

and knows nothing about the selection. He offers only speculation,

admitting that he is only guessing, that complainant's status as a CDG

graduate rather than a permanent employee may have made her ineligible

for the position. He offers no specific knowledge of the allegation or

of agency policy to substantiate his guess.

The agency, therefore, provides no nondiscriminatory explanation to

rebut complainant's prima facie case. The Commission issues a finding

of discrimination for this allegation.

On or about January 8, 2002, the Complainant learned that [a white-female

coworker] had received a temporary promotion to GS-14 as acting Chief,

Financial Management Branch in the PFR&MS Project Office, a position

for which the complainant was highly qualified.

The Commission finds discrimination on the basis of race in allegation

(6) for the same reasons as allegation (5). Complainant showed that,

despite being qualified, a white-female was temporarily promoted to the

GS-14 position. The agency again offered only speculation regarding

the reason complainant was not selected.

On or about February 11, 2002, Complainant received from the Director of

the Acquisition Support Center (ACS) a management-directed reassignment

(MDR) to a GS-1102-13 Contract Specialist position, the duties of

which she alleges had previously been performed by two GS-12s and were

therefore regressive.

Allegation (7) is dismissed because complainant failed to show that she

has suffered a negative employment action. Diaz v. Dept. of the Air

Force, EEOC Appeal No. 01932839 (April 21, 1994) �[T]he Commission's

regulations . . . require an agency to cancel a complaint that fails

to state a claim where an employee is not aggrieved�. Id. (citing 29

C.F.R. �1614.107(a)). �While the regulations do not define the term

aggrieved employee, the U.S. Supreme Court has interpreted it to mean

an employee who suffers a present harm or loss with respect to a term,

condition, or privilege of employment for which there is a remedy.� Id.

Complainant argues that her MDR was a negative employment action because

it was a regressive assignment. She argues that she had performed similar

duties for over ten years and her CDG certification warranted a promotion

involving greater responsibility. The record reveals, however, that

there is no guarantee of promotion after graduating from CDG. In fact,

one of the program's goals for graduates is assignment at the same level

of employment in a different area of operations. The reassignment was,

moreover, a positive employment action. Complainant was placed in

a permanent position with defined duties after having languished for

over a year in a training position without defined employment duties

or meaningful assignments. Allegation (7), therefore, fails to state

a claim.

IV. CONCLUSION

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

decision with regard to allegations (1), (2), (3), (4), and (7).

The Commission, however, REVERSES the agency's final decision for

allegations (5) and (6), and directs the agency to take remedial actions

in accordance with this decision and Order below.

ORDER (D0403)

The agency is ordered to take the following remedial action:<4>

1. Offer complainant temporary promotion in the positions of Chief, Cost

Analysis Branch in the PFR&MS Project Office, GS-14, and Chief, Financial

Management Branch in the PFR&MS Project Office, GS-14. Complainant may

accept both placements and serve them separately. Each placement shall

last for 120 days, unless both complainant and the agency agree otherwise.

2. Post the attached notice, as detailed below.

3. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include evidence that the corrective action

has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Close Combat Missile System facility

in Redstone Arsenal, AL copies of the attached notice. Copies of the

notice, after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated _____________ which found that

a violation of Title VII of the Civil Rights Act of 1964 (Title II),

as amended, 42 U.S.C. � 2000e et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,

promotion, compensation, or other terms, conditions or privileges of

employment. This facility supports and will comply with such Federal law

and will not take action against individuals because they have exercised

their rights under law.

The facility was found to have unlawfully discriminated against

an employee on the basis of race and sex by failing to temporarily

promote her. The agency shall therefore remedy the discrimination by

temporarily promoting her, paying attorney's fees if applicable, and

posting this notice. The facility will ensure that officials responsible

for personnel decisions and terms and conditions of employment will abide

by the requirements of all federal equal employment opportunity laws.

_____________________

Date Posted: ___________

Posting Expires: _______

1In this context, �regressive� means that the duties of the job were

less than commensurate with her qualifications.

2On appeal, the agency contends that only CDG graduates of the year

2000 are similarly situated to the complainant for the purposes of

establishing a prima facie case and that no evidence of similarly

situated employees therefore exists in the record. We note, first,

that it is not necessary for complainant to rely strictly on comparative

evidence in order to establish an inference of discriminatory intent to

support a prima facie case. Secondly, complainant's membership in the CDG

class of 2000 does not limit the scope of similarly situated employees

to fellow graduates of that class. Generally speaking, any employee

involved in and competing against complainant in the same process of

selection or evaluation such that it is reasonable to expect that they

would receive the same treatment is similarly situated to the complainant.

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(EEO MD-110), 6-10 (November 9, 1999). Complainant's CDG certification

is probative of her qualifications and potentially goes to show she was

treated differently.

3Complainant notes that the agency failed to provide documentation of

the other applicants' qualifications, which may have gone to show that

complainant was more qualified and the agency's reasons were pretextual.

Complainant, however, having failed to comply with the Administrative

Judge's scheduling order forewent an opportunity to bring this information

into the record in a hearing. The record, as it exists, suggests that

complainant was highly qualified for the position, but that the applicant

who was ultimately hired was highly qualified as well, after having

served in the position temporarily. The Commission, considering these

facts and the deference it must ultimately show to a selector choosing

among highly qualified applicants, see Cremona et al. v. Dept. of Energy,

EEOC Appeal Nos. 01990639, 01990640, 01990641 (Jan. 12, 2001), concludes

that data on other applicants' qualifications would have insufficient

probative value to warrant a remand for further investigation.

4We note that complainant has not requested compensatory damages in

this matter.