01995629
12-27-2001
Jessyl A. Woods, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, (Office of Fair Housing and Equal Opportunity), Agency.
Jessyl A. Woods v. Department of Housing and Urban Development
01995629
December 27, 2001
.
Jessyl A. Woods,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
(Office of Fair Housing and Equal Opportunity),
Agency.
Appeal No. 01995629
Agency No. FW9723
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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 her race
(Black), sex (female), age (DOB 5/29/52), and reprisal for prior EEO
protected activity (filing prior EEO complaints) when her selection for
the position of Equal Opportunity Specialist, GS-360/9/11/12, was revoked.
The record reveals that during the relevant time, complainant was employed
as an Equal Opportunity Assistant at the agency's Program Operations
Division in Fort Worth, Texas. Complainant applied for the Equal
Opportunity Specialist, GS-360/9/11/12, position in the Intake Division,
and was placed on the Best Qualified list. On September 12, 1996,
complainant was informed by an individual in Human Resources (HR) that
she was selected for the position, and she verbally accepted the offer.
However, on September 13, 1996, she received another call from the same
individual who told her that there had been a mistake, and she should
never have been placed on the Best Qualified list. The specific stated
reason for this was that she had not met the time-in-grade requirements
because she had not been a grade 7 for a full year. A Black male was
subsequently selected for the position. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on January 22, 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 complainant established a prima
facie case of race, sex and reprisal discrimination. The FAD found
no prima facie case of age discrimination because complainant had not
demonstrated that a similarly-situated, younger employee had been treated
preferably, nor had she demonstrated how her age had factored into the
nonselection decision.
On appeal, complainant restates arguments previously made, including a
claim that she was humiliated in front of her co-workers when the offer
was revoked. Complainant additionally contends, among other arguments,
that the position announcement contained no mention of time-in-grade
requirements. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
finds that even assuming that complainant established a prima facie case
of discrimination on all bases, the agency has articulated a legitimate,
nondiscriminatory reason for revoking the selection of complainant and
complainant has failed to establish pretext.
The management officials consistently state in their affidavits that
complainant's selection had to be revoked because she had not satisfied
the time-in-grade requirement, and she should never have been placed
on the Best Qualified list to begin with. HR further explained that
if the oversight had not been discovered until after complainant had
begun in the new position, she would have had to relinquish the position
upon discovery of the error. The selecting official (SO) asserted that
he was disturbed when Human Resources informed him of the oversight,
and that complainant's first-line supervisor (S1) and her second-line
supervisor (S2) were also disappointed. We note that complainant
does not dispute that she had not been a grade 7 for a full year at
the time of the relevant events. She does, however, contend that had
it not been for the agency's refusal to perform a desk audit when she
requested one in July 1993, and the agency's subsequent reorganization,
she would have been a GS-7 and within grade for over one year at the
time of the relevant events.
In an effort to establish that the agency's reason is pretextual,
complainant points to statements made by a Contracts Specialist (CS).
Specifically, CS states in her affidavit that (S1) approached the
individual who was to be complainant's new supervisor (NS), and told
him that he should reconsider the selection of complainant because she
is not a very good employee. Both NS and S1, however, deny that such
a discussion ever took place.
Further, in an effort to establish discriminatory animus, complainant
articulates her belief that S1 has a problem with Black females, and
CS echoes this belief. CS provides, as an example, the fact that S1
often says �good morning� to the White females, but will not speak to
the Black females. However, we note that despite the fact that she
is a Black female, CS admits that her relationship with S1 is cordial.
A co-worker of complainant stated that S1 told him that as long as he
hangs out around certain people (which he interpreted to mean complainant)
he would continue to get undesirable ratings. Several of the witnesses
admitted that complainant and S1 have a troubled working relationship, and
that S1 seems to treat complainant disparately. The selecting official
(SO), however, states that neither S1 nor S2 ever implied or expressly
stated to him that complainant should not be selected for any reason.
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. Specifically, we are not persuaded
by a preponderance of the evidence that complainant's age, sex, race
of prior EEO activity were considerations in the agency's decision to
revoke her selection for the position in question. In this regard,
we note that the challenged action was initiated by HR and there is no
evidence that either S1 or S2 influenced HR's determination that the
time-in-grade requirement applied.
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
December 27, 2001
__________________
Date