Dianna L. Gorton, Complainant,v.John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Investigation) Agency.

Equal Employment Opportunity CommissionDec 12, 2001
01994189 (E.E.O.C. Dec. 12, 2001)

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.