01A34019
06-30-2004
Evelyn J. Cockrum, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Evelyn J. Cockrum v. Department of the Air Force
01A34019
June 30, 2004
.
Evelyn J. Cockrum,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A34019
Agency No. AR000030722
DECISION
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.
The record reveals that during the relevant time, complainant was employed
as a Supervisory Management Specialist, GS-0201-13, at the agency's
Civilian Personnel Flight, 377th Air Base Wing at Kirkland Air Force
Base, New Mexico. Complainant sought EEO counseling and subsequently
filed a formal complaint on November 15, 2002, alleging that she was
discriminated against on the bases of race (Caucasian) and sex (female)
when she was not selected for the position as a Civilian Personnel Officer
(CPO), GS-0201-14, on or about September 12, 2002.
The record reveals that on April 3, 2002, recruitment action was approved
for a Civilian Personnel Officer, GS-0201-14. Seventeen candidates,
including complainant, were referred to the Selecting Official (SO)
and his selection panel. Based on the review of the candidate's career
briefs and resumes, the five with the highest scores were chosen for
an interview. Complainant was interviewed in person, and the other
candidates were interviewed telephonically. On or about October, 2002,
the selectee, a White Male, was selected for the CPO position.
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.
The FAD found that assuming complainant established a prima facie case
of race, sex, and national origin discrimination, the agency offered a
legitimate non-discriminatory reason for its decision, which was that
complainant did not perform as well as selectee during the interview
process, which was weighed more heavily in the panel's decision.
Although the agency concluded that the selections did not comport with
established procedures, and the process may have been tainted as a whole,
the agency found insufficient information to conclude the agency's
decision was based on complainant's race or gender.
On appeal, complainant contends that the strength of her prima facie case,
combined with weaknesses in the agency's legitimate, non-discriminatory
reason entitle her to a finding of discriminatory intent under Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) (holding a
finder of fact may infer the ultimate fact of discrimination from the
falsity of the employer's explanation, though such an inference is not
mandatory). The agency, in response, requests that we affirm its FAD.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In non-selection cases, pretext may be found where the complainant's
qualifications are demonstrably superior to the selectee's. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Ultimately, the agency
has broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the Treasury,
EEOC Request No. 05940906 (January 16, 1997).
The Commission finds that complainant properly established a prima facie
case of gender discrimination, however, we find insufficient evidence
that the agency's assertion that complainant did not interview as well
as selectee was false. Although complainant was rated higher than the
selectee before the interview, complainant's rating, especially in light
of the fact that this score reflected only a part of the selection
process, was not so superior to selectee as to warrant a finding of
pretext. There is sufficient evidence from the record to conclude that
the interview was weighted more heavily than the resume/career brief
because the CPO had to effectively interact with senior management. (IE
F-5 p.259; IE F-9 p.297). Although there is insufficient evidence in
the record to decide if the departure from the usual selection procedure
was a violation of agency policy, we nevertheless find that the record
does not establish that such departure was motivated by discriminatory
animus toward complainant's sex, race, and/or age.
The record contains affidavit testimony from several members of the
selection panel, who state that the selectee was very articulate,
confident, and answered the panels questions well enough to satisfy
them that the selectee would be well able to represent effectively
with senior management. (IE F-6 p. 264; 267). The panel members also
state that they felt that complainant was very nervous, inarticulate,
and evaded answering the panel's questions. (IE F-6 p. 263; 266; F-7
p.297). Members of the panel stated that the CPO would have to answer
questions of the Wing Commander during meetings and needed to be able
to represent themselves well. (IE F-9 p.297). None of the panel members
stated there were negative references to complainant's appearance,
and one member stated complainant looked very professional (IE F-6 p.267).
We find, therefore, that complainant failed to show by a preponderance
of the evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note that complainant supplemented her appeal with
a statement to support her contention that the �selection panel never
wanted to hire her� and that the selection officer allegedly wanted to
make sure she never was hired. (Complainant's Affidavit in Support of
Appeal). However, complainant still fails to link this alleged animus
toward her to her race or her gender.
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
June 30, 2004
__________________
Date