01994189
12-12-2001
Dianna L. Gorton, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Investigation) Agency.
Dianna L. Gorton v. Department of Justice
01994189
12-12-01
.
Dianna L. Gorton,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation)
Agency.
Appeal No. 01994189
Agency No. F-97-44923-0
DECISION
Dianna L. Gorton (complainant) filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final agency decision
(FAD) received April 2, 1999, concerning her complaint alleging that
she was discriminated against on the bases of her race (Caucasian), sex
(female), and reprisal (prior EEO activity) in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. (1994 & Supp. IV 1999). The appeal was postmarked April 30, 1999.
Accordingly, the appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issues presented on appeal are 1) whether complainant was
discriminated against on the abovementioned bases when her promotion to
a GS-6 position was delayed because her transfer letter was not processed
in a timely manner, and was then later denied; and 2) whether complainant
was discriminated against when she was required to provide additional
medical information after she had successfully completed training.
BACKGROUND
The record reveals that during the relevant time, complainant, a GS-5
Computer Analyst/File Clerk, applied for a position with the agency
at its Quantico, Virginia facility as a Police Officer, GS 5/6/7,
under merit promotion vacancy announcement #: 95-02-569 (posting).
The posting indicated that GS-6 applicants must possess one year of
related specialized experience as an active member of a federal, state,
county, municipal or local police force, or other comparable experience.
Additionally, the posting noted that the year of required experience for
a GS-6 and one of the required years for the GS-7 levels may be waived
if the applicant had successfully completed four years of study leading
to a baccalaureate degree in Police Science at an accredited college
or university. The record reveals that at the time complainant applied
for the position she had already completed her undergraduate degree in
the relevant subject area.
The record further reveals that prior to completing the follow-up
information required for her pre-employment fitness-for-duty physical,
complainant began her FBI police training at the Federal Law Enforcement
Training Center (FLETC) in Glynco, Georgia. After complainant
successfully completed the program in August 1996, she was asked to
provide the follow-up medical information.<1> After providing the
requested documentation, complainant was assigned to the agency's Quantico
facility as a GS-5 Police Officer. Complainant alleges that she did not
receive her transfer letter for her assigned duty station until October
31, 1996, whereas the transfer letter for an African American female,
who graduated from FLETC on October 18, 1996 was drafted and sent by the
Responsible Management Official (RMO) to the Personnel Division on October
8, 1996. Complainant alleges that her promotion to a GS-6 could not be
processed without a transfer letter. Complainant then alleged that she
received a letter in April 1997, which denied her promotion to the GS-6
level. Complainant viewed the preceding actions as retaliation for her
prior EEO activity against the RMO, an African American male. Believing
she was a victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on January 31, 1997. 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. When complainant failed to
respond within the time period specified in 29 C.F.R. � 1614.108(f),
the agency issued a final decision.
In its FAD, the agency concluded that the record failed to support
complainant's claims of discrimination and retaliation and that even
assuming that a prima facie case of race and sex discrimination existed,
management articulated legitimate non-discriminatory reasons for its
actions. In regard to complainant's allegation that the RMO delayed her
transfer, the agency indicated that through September1995, responsibility
for the FBI Academy Police (Academy) was assigned to the FBI Headquarters
(FBIHQ) Security Unit and at that time it was the RMO's responsibility
to draft transfer request letters.<2> However, on October 1, 1995, the
Academy was administratively transferred to Division II, which was not
under the RMO's direct supervision. Approximately eleven months later,
in August of 1996, the RMO was asked to prepare a transfer letter for
complainant. However, as a result of the change, the RMO incorrectly
believed that the FBIHQ Staffing Unit was responsible for drafting
the transfer request letters, and operating under this assumption,
did not immediately process complainant's transfer request. In order
to resolve the confusion, the RMO decided to start requesting such
transfer letters for Division II police officers, the first of which
was for the complainant.
In response to complainant's allegation that she was denied a promotion
to a GS-6 level, the agency referred to the affidavit of the Personnel
Staffing Specialist, who indicated that the Staffing Unit, and not the
RMO, was responsible for making general schedule (GS) grade entry-level
determinations for new police officers. Moreover, the Specialist
indicated that the FBI's Merit Promotion and Placement Plan incorporated
the Office of Personnel Management's (OPM) Qualifications Standards for
General Schedule Positions in determining the minimum qualifications
for police officer positions and that, as such, complainant did not
possess the required one year of �specialized experience� necessary
for entry-level placement as a GS-6 police officer. The agency also
concluded that while it recognized there was an apparent conflict between
the qualification requirements in the Police Officer Vacancy Announcement
and the requirements in the OPM standards referenced in the FBI's Merit
Promotion and Placement Plan that needed to be addressed,<3> this conflict
was insufficient to overcome the fact that there was no evidence in the
record that complainant's race or sex was determinative in the decision
not to promote her to a GS-6. Further, the agency indicated that there
was no evidence that OPM standards were applied only to complainant and
not to others.
The agency also concluded that the RMO provided legitimate reasons to
rebut complainant's allegation that he discriminated against her by
requesting additional medical information related to her pre-employment
physical after she had successfully completed training. Specifically,
the RMO indicated that he received a Health Evaluation Form from the
Health Unit, dated July 1, 1996, recommending that complainant undergo
additional testing based on the results of her pre-employment physical.
As complainant was already in training at FLETC, the RMO made a managerial
decision to allow complainant to continue her training even though he
could have required her to complete the additional medical evaluation
before continuing. The agency found that there was no support for a
finding that the RMO's actions were motivated by discriminatory animus
toward complainant. The agency also concluded that agency officials
provided legitimate reason for denying complaint's promotion and that
there was no evidence in the record to support a finding that the denial
was retaliatory in nature.
On appeal, complainant restates arguments in support of her claim, and
further contends that material information from at least one agency
witness was omitted from the investigative report<4>; that relevant
information that she received during personal conversations with an
employee of the agency's personnel staff was not included in this
individual's affidavit; and that the original witness statements taken
in 1997 were not included in the record and were needed for comparison
purposes with the ones in the record that were taken in 1998. Further,
complainant contends that while the agency indicated that one of her
witnesses was not interviewed because she was a former employee and
could not be located, that in fact this witness was still employed by
the agency.<5> In response, the agency contends that complainant failed
to avail herself of the opportunity to argue the factual record when she
proceeded to a FAD without a hearing and requests that we affirm its FAD.
FINDINGS AND ANALYSIS
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. 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. 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.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This 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. United States Postal Serv. Bd. 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 Serv., EEOC Request No. 05900467 (June
8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
For the purposes of this decision, the Commission assumes
that complainant established a prima facie case of race and sex
discrimination and reprisal. Therefore, the agency must articulate a
legitimate, nondiscriminatory reason for its action. Here, in response
to complainant's allegation, that she was denied a promotion to a GS-6,
the agency indicated that the Staffing Specialist Unit, not the RMO, made
the GS entry level grade determinations. Further, the agency concluded
that the FBI's Merit Promotion and Placement Plan incorporated the Office
of Personnel Management's (OPM) Qualifications Standards for General
Schedule positions in determining the minimum qualifications for police
officer positions. This standard did not allow for a college degree to
substitute for the one year of �specialized experience� necessary for
entry-level placement as a GS-6. We note that the relevant sections
applying to the minimum qualifications for GS level classification were
effective on June 6, 1995, prior to complainant applying for the instant
position. Moreover, the guidelines note that a RMO may deviate from
these guidelines only if the OPM guidelines are deemed inappropriate.
Complainant has not sustained her burden in showing that she possessed
the specialized skills that would have permitted her promotion to a
GS-6 or that similarly situated employees outside of her protected group
without the relevant specialized experience were rated as a GS-6 due to
the error in the vacancy announcement.
Complainant alleged that the RMO delayed processing her transfer
letter, while letters for employees outside of her protected group were
processed in a timely manner. The agency responded indicating that
in October 1995 there was a shift in the responsibilities for the FBI
Academy away from the RMO. As a result, the RMO incorrectly assumed
that the responsibility for drafting the transfer letter shifted to the
Staffing Unit. During that eleven month time period, complainant was
the first new officer to need a transfer letter, and the confusion as
to who was responsible for drafting the letter resulted in her letter
being delayed. Complainant failed to sustain her burden to show that
the agency's articulated reasons were pretextual.
Complainant also alleged that the RMO requested additional medical
documentation after she had successfully completed her training.
Commission guidance indicates that in conjunction with a conditional offer
of employment, an employer may conduct medical examinations, as long as
it does so for all entering employees in the same job category. See 29
C.F.R. 1630.14(a); see also EEOC Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under the Americans
with Disabilities Act (July 27, 2000) (Medical Examinations). We note
that completion of the health evaluation form at issue here was part
of a conditional job offer to complainant, and was initiated before
complainant started training. The RMO indicated that complainant began
her training prior to completing the follow-up requirements for her
pre-employment physical. Rather than halting her training as he would
have been authorized to do, the RMO requested the information after
the training was completed. Therefore, agency concluded that there
was no support for a finding that the RMO actions were motivated by
discriminatory animus toward complainant. We find that complainant
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were pretext for discrimination.
In reaching this conclusion, we note that the request was initiated by
the agency's Health Unit, not the RMO, and that there is evidence in
the record that it is not unusual for new police officers to have to be
retested or address particular health related concerns.
CONCLUSION
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 FAD.
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
______12-12-01________________________
Date
1The information requested from complainant included a body fat
measurement, urinalysis, questionnaire completed by her personal physician
and a chest x-ray.
2The FBI Academy Police appears to be a separate security unit for
the academy.
3 The OPM standards for August 1994, which were incorporated into the
agency's Merit Promotion and Placement Plan at the time complainant
applied, indicated that to qualify for the GS-5 level in the �Police
Series,� the applicant needed to successfully complete a bachelor's
degree; at the GS-6 level, the applicant needed one year of �specialized
experience� equivalent to at least the next lower grade level. Further,
the standards indicated that no substitution of education or training
would be made for the required specialized experience at the GS-6 level
or above.
4We note that here, complainant was referring to statements taken by
the EEO Counselor which were also included in the record for Commission
review.
5The complainant had previously identified this witness as a former
employee, but gave no forwarding/contact information for this witness.