01A25057_r
08-19-2003
Jessica L. Mellington, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Jessica L. Mellington v. Department of the Navy
01A25057
August 19, 2003
.
Jessica L. Mellington,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A25057
Agency No. 01-45534-001
DECISION
Complainant timely initiated an appeal from a final agency decision
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 record reveals that complainant, a former summer intern and an
applicant, applied for a 2001 summer intern position advertised under
Announcement Number HRSCC-Student-01(GS)/RG at the agency's Surface
Combat Systems Center on Wallops Island, Virginia. Complainant sought
EEO counseling and subsequently filed a formal complaint on September 10,
2001, alleging that she was discriminated against on the bases of race
(Caucasian) and in reprisal for prior EEO activity when she was not
selected for a 2001 summer intern position advertised under Announcement
Number HRSCC-Student-01(GS)/RG.
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. Complainant
requested that the agency issue a final decision.
The final agency decision concluded that the agency articulated
legitimate, nondiscriminatory reasons for not selecting complainant
for the 2001 summer intern position. Further, the agency found that
complainant did not present any evidence which demonstrated that
the agency's articulated reasons for its actions were pretext for
discrimination.
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, he 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. See 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. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established 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. See U.S. Postal
Service Board 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 Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its employment actions, which we determine
were not persuasively rebutted by complainant. Specifically, the agency
presented evidence supporting a determination that complainant was not
selected for a 2001 summer intern position because she had graduated
from undergraduate school, and that it was the agency's policy that only
undergraduate students would be hired.
The record in this case contains a declaration from the Selecting Official
(SO).Therein, the SO stated that he made the decision to not to select
complainant because of the agency's policy to hire undergraduate students.
The SO further stated that complainant was not selected for a summer
intern position because of her status as a graduate student and that he
wanted to keep up with the agency's practices hiring undergraduates. The
record also contains the SO's memorandum to the agency's Human Resource
Center, wherein the SO stated that it was the determination of the Surface
Combat Systems Center to support its original intent of offering summer
interns positions to undergraduate students. The record also contains
a declaration from the Personnel Specialist. Therein, the Personnel
Specialist stated that it was up to each agency what level students they
wanted to hire for the summer intern program pursuant to the Office of
Personnel Management regulations regarding Student Education.
Complainant has not demonstrated that the agency's articulated reasons
for the non-selection were a pretext for discrimination.
Therefore, after a careful review of the record, we AFFIRM the final
agency decision.
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
August 19, 2003
__________________
Date