01990074
09-27-2001
Estate of Ardell E. Scriber, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Estate of Ardell E. Scriber v. Department of Transportation
01990074
September 27, 2001
.
Estate of Ardell E. Scriber,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01990074
Agency No. 2-96-0043
DECISION
Ardell E. Scriber (complainant) timely initiated an appeal from a final
agency decision (FAD) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged
that she was discriminated against on the bases of race (Black) and sex
(female), when she was not selected for the position of Financial Analyst,
GS-1160-13, Vacancy Announcement No. MA-95-54.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Vessel Cost Specialist, GS-301-12 at the Maritime Administration
(MARAD), Office of Ship Construction, Division of Cost Analysis &
Production, Washington D.C. facility. Believing she was a victim of
discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on October 17, 1995. 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. The complainant requested a hearing on January
8, 1997. However, the complainant passed away before the hearing could
be conducted. The estate withdrew the request for a hearing on March 23,
1998, and requested that a final agency decision be issued.
In its FAD, the agency concluded that complainant has established a
prima facie case of discrimination in that: (1) she is a black female;
(2) she applied and was qualified for the position of Financial Analyst
GS-1160-13; (3) despite her qualifications, she was not selected for
the position; and (4) two White males were selected.
In rebuttal of the prima facie case, the agency articulated legitimate
nondiscriminatory reasons for the selections. The agency asserts
that the two candidates selected were the top two applicants based on
job-related criteria and that the selections were based on the experience,
education and/or skills of the applicants. The agency contends that
the selecting official states that he was seeking an individual with
cost estimating experience. The agency argues that the selectees had
significant experience in this area and were rated highly qualified for
the positions by the agency panel and OPM.
Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
The complainant alleges a claim of disparate treatment on the bases
of race and sex. 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 the 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).
Complainant may establish a prima facie case of race and sex
discrimination by showing that: (1) she is a member of a protected
class; and (2) she was accorded treatment different from that given
to persons otherwise similarly situated who are not members of her
protected group. See Potter v. Goodwill Industries of Cleveland, Inc.,
518 F.2d 864, 865 (6th Cir. 1975). The Commission agrees with the
agency that complainant established a prima facie case of race and sex
discrimination in light of the fact that she was found to be qualified
for the Financial Analyst position and the selectees were outside of her
protected group. Therefore, we will review the reasons articulated by
the agency for its action. We found that complainant failed to prove
that the agency's legitimate non-discriminatory explanations for its
actions were a pretext for discrimination.
We will first address complainant's claim that she was more qualified
for the position. In a non-selection case, pretext may be demonstrated
by showing that complainant's qualifications are observably superior
to those of the selectees. See Bauer v. Bailor, 647 F.2d 1037, 1048
(10th Cir. 1981); see also Williams v. Department of Education, EEOC
Request No. 05970561 (August 6, 1998). Although complainant contends
that she was better qualified than the selectees, there is insufficient
evidence on record to support this contention. The record reveals that
the selectees had much broader experience in the field of shipbuilding
and cost estimating than complainant. Selectee 1 has held a number of
management positions in the shipbuilding industry and was most recently
a Ship Manager (Superintendent) from 1993 to date of his selection.
Selectee 2 has held a number of engineering and financial analyst
positions in engineering and shipbuilding industries. His immediate past
position was as a Senior Industrial Engineer from 1985 to 1995. The duties
of the position place primary emphasis on both the shipbuilding/ship
repair product and process. In his statement, the selecting official
alleged that it was necessary to go outside the agency to fill those
positions because of the specialized nature of the positions. However, he
stated that complainant does not possess adequate industrial experience
in marine and in related industries. The selecting official also stated
that if there had been a third position, then the complainant would
have been offered the position because she ranked third from his ranking
file. Complainant offers no evidence to suggest that the experience in
shipbuilding/ship repair product and process are not essential aspects
of the job or that this reason was a pretext for discrimination.
Complainant next claims that preselection may have been involved because
of a preexisting relationship between the selectees and the organization
in which they were hired. Complainant did not provide many specifics
in regard to this claim. The record does not contain information which
would support a finding that a previous relationship existed between
the selecting official and the selectees. The agency stated that
preselection violates Title VII only if it is premised on a prohibited
criteria; however, in this case, the selectees were qualified for the
positions, and there was no showing that the selections were based on
prohibited criteria.
Complainant asserts that the agency violated its own policy when it
contacted applicants and provided them an opportunity to supplement
their applications. Complainant also contends that the agency failed
to notify her of the same opportunity. Complainant further alleges that
it was irregular for the agency to use the same certificate to fill the
second position. The agency alleged that it was acceptable practice to
send out letters where only a few applicants actually submitted everything
initially requested. The agency also argues that the oversight in sending
the letter to the complainant was an �administrative error.� However,
the selecting official was not involved in that error or in the decision
to request additional information. The agency further alleged that the
merit promotion certificate issued on August 16, 1995 would have been
valid, with the extension, until October 16, 1995, and that the second
selection was made in September 1995. Complainant failed to show that
the selecting official knew about that error nor that the error was the
reason for her non selection. Therefore, complainant did not prove that
either the extension or the use of the same merit promotion certificate
was a pretext for discrimination.
Complainant also contends that the selecting official did not prepare
specific questions to ask her, which suggests that she was not given
serious consideration. The agency states that he did interview her.
The agency also stated that the selecting official did not prepare
questions for any of the candidates and that the questions were based
on their previous employment. Complainant failed to establish that the
lack of specific questions proved pretext or even played a role in her
non selection.
While the Commission closely scrutinizes such subjective selection
criteria, based on the facts in this case we find that the selecting
official's decision to select someone with shipbuilding/ship experience
from outside the agency because of the specialized nature of the positions
did not establish that his selection decisions were motivated by unlawful
employment considerations. See, Miller v. Department of the Interior,
EEOC Appeal No. 01960577 (December 22,1997).
Therefore, after a careful review of the record, 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
September 27, 2001
__________________
Date