01a53928
09-28-2005
Cheryl A. Gardner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl A. Gardner v. United States Postal Service
01A53928
9/28/2005
.
Cheryl A. Gardner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53928
Agency No. 66-000-0046-04
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
dated April 13, 2005, 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 a Senior Forensic Chemist at the agency's Forensic Laboratory in
Dulles, VA. Complainant sought EEO counseling and subsequently filed a
formal complaint on October 16, 2004, alleging that she was discriminated
against on the bases of race (Black-American), national origin (United
States of America), sex (female), religion (Baptist), color (Brown),
and age (D.O.B. March 11, 1959).
By letter to complainant dated November 5, 2004, the agency accepted
her complaint for investigation and determined that her complaint was
comprised of the following claim:
On July 23, 2004, [complainant] was informed that she would not be
interviewed for the Assistant Laboratory Director position, EAS-26,
position number 09284.
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 that complainant was not subjected to
unlawful discrimination when she was not interviewed for the subject
position. Specifically, the agency found that it articulated legitimate,
nondiscriminatory reasons for its action. In its final decision, the
agency states that the top four candidates were referred by the review
committee to the selecting official (SO). In addition, the agency asserts
that the review committee did not refer complainant to the SO because
the review committee reached a consensus as to the top four candidates,
upon reviewing all the applications.
The record reflects that seven candidates applied for the subject
position. The review committee, comprised of three individuals,
did not interview any of the applicants, but reviewed the candidates'
applications. Thereafter, the review committee scored the applicants
and referred the top four candidates, which did not include complainant,
to the SO.
On appeal, complainant asserts that she was subjected to discrimination
when she was not interviewed for the subject position. The agency
requests that we affirm its FAD.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she 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 consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We find that the agency articulated legitimate, nondiscriminatory reasons
for its actions. The record contains an affidavit from the Chairperson
(C1) of the review committee. Therein, C1 states that the four finalists,
which were referred to the SO, received higher scores from the review
committee than the applicants that were not finalists. Specifically, C1
states that �[the finalists'] qualifications and narratives, as written,
contained information indicating a higher level of qualification for the
vacant position, including better or more thorough narrative[s] containing
the elements of the �star' format (situation/task, action, result) for
the �KSAs' (knowledge, skills, and abilities) required for the position.�
The record also contains an affidavit from another member of the review
committee (M1). Therein, M1 states that the review committee referred
four individuals to the SO. M1 further states that the review committee
decided that these finalists would best meet the requirements of the
subject position based upon their application materials. In addition, M1
asserts that �[d]ue to the scientific, technical, and quality assurance
requirements of the position, I also evaluated applicants in the areas of
advanced degrees, professional certifications, membership in professional
organizations, publications, research and experience in quality assurance
of forensic laboratories accredited by the American Society of Crime
Laboratory Directors.�
The Commission finds that complainant failed to present sufficient
evidence that the agency's reasons for its actions were pretext
for discrimination. In an effort to establish pretext, complainant
raises various arguments including: the subject position was posted
simultaneously internally and externally, and that one of the members of
the review committee, M1, had made the following statement in reference
to internal candidates, �[n]one of the forensic chemists are worthy
or qualified for the position.� Complainant asserts that management
deviated from its routine practice of promoting internal applicants
by posting the subject position both internally and externally.
In response, the SO, in his affidavit, states that in order to obtain
an adequate pool of applicants he requested that the position be posted
internally and externally. SO further states that �this is routine
for the laboratory's scientific and technical personnel.� With respect
to the statement complainant claims was made by M1, in her affidavit,
M1 denies making the statement in question.
Finally, we note that complainant may be able to establish pretext
with a showing that her qualifications were plainly superior to those
of the selectee. See Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995). While complainant asserts that she
is qualified for the position and served in a four month detail in the
subject position, upon review of the entire record, we do not find that
complainant's qualifications are plainly superior to the qualifications
of the finalists.
Accordingly, we AFFIRM the agency's final decision finding no
discrimination.
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
9/28/2005
Date