01973810
09-03-1999
Carolyn McCray-Herren Appellant, v. Louis Caldera Secretary, Department of the Army, Agency.
Carolyn McCray-Herren v. Department of the Army
01973810
September 3, 1999
Carolyn McCray-Herren )
Appellant, )
) Appeal No. 01973810
v. ) Agency No. DA-94-04-0109
) Hearing No. 270-94-9119X
Louis Caldera )
Secretary, )
Department of the Army, )
Agency. )
_________________________)
DECISION
On April 8, 1997, Carolyn McCray-Herren (appellant) timely appealed the
final decision of the United States Department of the Army (agency),
which was received by appellant on March 17, 1997, concluding she had not
been discriminated against in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. In her complaint,
appellant alleges that she was discriminated against on the bases of race
(Black) and color (black) when she was not selected for the position of
Lead Education Technician GS-1702-05 in the Child Development Center in
August, 1993. The appeal is accepted by the Commission in accordance
with EEOC Order No. 960.001.
The record reflects the following: During all times relevant herein,
appellant was employed with the agency as a Program Assistant. On April
7, 1993, the agency announced a vacancy in the position of Lead Education
Technician GS-1702-05. The duties of the position involved conducting and
assisting with child care activities. Appellant applied for the position
on April 16, 1993. On May 12, 1993, a referral and selection register
was sent to the selecting official. No applicant was selected. Also on
May 12, 1993, a separate referral and selection register was sent to
the selecting official who selected three out of five referrals. Two of
the selectees (C1 and C2) were white and one (C3) was black. However,
these selections were later voided because of priority placement rules.
On June 22, 1993, another referral and selection register was sent to
the selecting official. According to the instructions on this referral
certificate, the selecting official could not decline to select a spouse
preference eligible in favor or a non-spouse preference eligible.
On June 24, 1993, the selecting official (Black) (S1) chose three of
the referrals, C4, C5, and C6, who were all spouse preference eligibles
and Black. Later a forth vacancy developed and S1 used the June 22, 1993
selection register which contained the names of the unselected applicants.
S1 selected C7 (white).
On October 1, 1993, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against her as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ). A hearing was conducted
on or about September 26, 1996. Thereafter, the AJ issued a recommended
decision finding no discrimination.
The AJ determined that appellant established a prima facie case of
discrimination with respect to the fourth vacancy since C7 was white
and was not a spouse preference eligible applicant. While appellant
testified that S1 stated that she was not going to hire blacks any
more, the AJ assessed the evidence and credibility of the witnesses and
determined that the statement was not made by S1. The AJ specifically
noted that the person who allegedly heard the statement was not called
as a witness by appellant.
The AJ also determined that the agency articulated a legitimate,
non-discriminatory reason for its employment action. Specifically,
S1 testified that when the fourth vacancy developed she requested
permission from Personnel to use the same referral list to fill the
fourth vacancy. Personnel granted S1's request. S1 affirmed that she
used the results from the original selection process which had narrowed
the possible selectees to three candidates. S1 explained that because C7
was at the top of the list of those three candidates, she was selected.
The review panel (one black and one white) confirmed that they ranked
C7 over appellant because C7 had more college credits in early childhood
education than appellant.
The AJ found that appellant failed to prove, by a preponderance of the
evidence, pretext or that the agency was motivated by discriminatory
animus. The appellant argued: (1) that she had more experience than C7;
(2) that S1 made a statement about not wanting to hire anymore blacks;
(3) that there were irregularities in the selection process; and (4)
that C7 threatened to complain if she was not selected. The record
reveals that C7 and appellant both were well qualified for the position.
They had similar performance ratings, and certificates of training.
Appellant had 6 semester hours of related college education and C7 had
twenty-six semester hours of related college education. Appellant had
approximately ten years of relevant pre-agency experience and C7
two years of relevant pre-agency experience. Both C7 and appellant
received a score of 98 on their merit staffing ratings for the vacancy
announcement. According to the AJ, the record did not establish that
appellant was more qualified than C7. While appellant contended that
S1 made a comment about not wanting to hire blacks, the AJ found that
the preponderance of the evidence did not establish that such statement
was made. Appellant also contended that her name was misspelled on one
of the referral certificates. However, the record indicates that despite
the mistake, appellant was, nevertheless, considered for the vacancies.
Appellant also contended that S1 should have restarted the selection
process instead of selecting C7 from an existing certificate. Both S1
and a personnel officer testified that since the existing certificate
was less than 120 day old, it was permissible to use the certificate.
Lastly, the appellant contended that C7, a union representative,
threatened to file a grievance if she was not selected. The AJ noted
that there was nothing in the record to support appellant's allegation.
However, assuming this allegation was true, it was not probative of
race and color discrimination. Considering the record as a whole,
the AJ determined that appellant failed to prove pretext, or that the
agency was motivated by discriminatory animus.
On March 12, 1997, the agency adopted the findings and conclusions of
the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56
(1981). The Commission concludes that, in all material respects, the AJ
accurately set forth the relevant facts and properly analyzed the case
using the appropriate regulations, policies, and laws. Based on the
evidence of record, the Commission discerns no basis to disturb the AJ's
findings of no discrimination. As appellant has offered no additional
evidence in support of her claim on appeal, we discern no legal basis
to reverse the AJ's finding of no discrimination. Accordingly, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
9/3/99
_______________ _______________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations