0120080964
08-20-2009
Jean Williams, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Jean Williams,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080964
Agency No. ARRRAD06OCT04230
DECISION
On December 10, 2007, complainant filed an appeal from the agency's
November 15, 2007 final decision concerning her equal employment
opportunity (EEO) complaint alleging 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(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Resource Management Analyst at the agency's Red River Army Depot
facility in Texarkana, Texas.
On January 30, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (Black), sex (female),
and reprisal for prior protected EEO activity under Title VII when:
1. she was not selected for either of two Lead Budget Analyst,
GS-0560-12 positions on August 12, 2006; and
2. she was not selected for either of two GS-0560-11 Budget Analyst
positions on November 6, 2006.
The record reflects the following circumstances: Complainant applied
for consideration for the two Lead Budget positions, and was referred
to the interview panel on June 12, 2006. Complainant engaged in recent
prior EEO activity and the selecting official was aware of complainant's
prior EEO activity. The selecting official developed the rating criteria
to be used by the panel for evaluating the candidates for interview. The
panel was not aware of complainant's prior EEO activity or the candidates'
race or sex. The interview panel was given resumes with the applicants'
names and other identifying information blacked out, although one of
the panelists surmised which one was complainant's application. After
evaluating the candidates, the panel interviewed only the highest-rated
candidates. A white male and a white female were selected. Complainant's
rating was not among the highest-rated candidates, and complainant was
not interviewed or selected.
With regard to the GS-11 Budget Analyst positions, complainant was
recommended for consideration and was rated the second-highest-rated
candidate. The agency selected the first-highest-rated candidate and
the third-highest-rated candidate. The third-highest-rated candidate
received favorable comments from her supervisor and was of the same
race and sex as complainant. The selecting official relied on her
own impressions and the negative comments received from complainant's
supervisor. Complainant acknowledged some performance deficiencies, but
stated that the supervisor's comments about her performance were untrue.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that she was subjected to discrimination as alleged.
Neither party submitted a brief in support or in response to this appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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
she 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, because the agency has articulated
legitimate, non-discriminatory 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, 143 (2000); Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 256 (1981).
After a careful review of the record, we find the agency was correct
in its finding of no discrimination. The record supports the agency's
reasons - that the agency selected the persons whom the agency deemed
the most qualified and who had not received negative comments -
and complainant did not provide sufficient evidence to show that the
agency's proffered reasons more likely than not were a pretext for
unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends 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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 20, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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