0120113748
08-23-2013
Joanne A. Silas, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Joanne A. Silas,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120113748
Agency No. 064248502796
DECISION
On July 21, 2011, Complainant filed an appeal from the Agency's June 20, 2011, final decision (FAD) 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
Complainant had previously been employed by the Agency as a Secretary until February 1993. In 2006, Complainant applied and was not selected for several positions at the Agency. At the time of these nonselections, Complainant was neither a federal employee nor a veteran.
On May 23, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and disability1 (emotional stress) when she was not selected for several positions.
Following a decision by an EEOC Administrative Judge (AJ), the Agency issued a final order on April 15, 2010, that adopted the AJ's finding of no discrimination. Complainant appealed that final order to this Commission and, in a decision (Decision) dated September 27, 2010, we affirmed the Agency's final order in part and reversed in part. See Silas v Department of the Navy, EEOC Appeal No. 0120102434. Specifically, we affirmed the AJ's decision in favor of the Agency with regard to six non-selections.2 However, we found that the AJ's decision and the Agency's final order failed to address all of the non-selections referenced by Complainant in her complaint. We therefore affirmed the Agency's final decision adopting the AJ's finding of no discrimination, but remanded those non-selection claims not addressed back to the Agency for further processing.
The following claims were return to the Agency on remand:
1. On an unspecified date, Complainant was not selected for the position of Dispatching Technician/Dispatcher (DON 2151);
2. On an unspecified date, Complainant was not selected for the position of Human Resources Technician/Dispatcher (DON 0203);
3. On an unspecified date, Complainant was not selected for the position of Miscellaneous Clerk/Assistant (DON 0303); and
4. On an unspecified date, Complainant was not selected for the position of Office Automation Clerk/Assistant/Technician (DON 0326).
On remand and at the conclusion of the supplemental investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final agency decision (FAD)3 pursuant to 29 C.F.R. � 1614.110(b).
The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that, with regard to claims 1, 2, and 4, "Complainant's resume was never matched to the [Open Continuous Announcements] for the positions" and "Complainant failed to show that she met the specific qualifications for these positions." With regard to claim 3, the Agency found that the position was only open to candidates currently working for the Agency and because Complainant was not an Agency employee, she was not referred for consideration.
The instant appeal followed.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, Complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the Agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is Complainant's burden to demonstrate by a preponderance of the evidence that the Agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804.
Complainant may establish a prima facie case of discrimination in the nonselection context by showing that: (1) she is a member of a protected class or classes; (2) she was qualified for the position; (3) she was not selected for the position; and (4) she was accorded treatment different from that given to persons otherwise similarly situated who are not members of her protected group or groups. Williams v. Department of Education, EEOC Request No. 05970561 (August 6, 1998); Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996).
The record shows that the four announcement numbers listed were "not advertisements for specific vacancies. They are open continuous announcements (OCA) used to establish an inventory of resumes. When hiring officials have specific vacancies to fill they can request a list of best qualified candidates from the inventory." Report of Investigation (ROI) Attachment 4, p. 2. See also Attachment 3, p. 2 and Attachment 2, p. 2. With regard to claim 3, we find that Complainant failed to establish a prima facie case because she failed to show she was qualified for the position, and she failed to show she was accorded treatment different from that given to persons otherwise similarly situated but outside of her protected groups. We note in this regard that an Agency Human Resources Specialist (HR1: Caucasian, female, no claimed disability) averred that Complainant was initially considered for a DON 0303 Miscellaneous Clerk/Assistant position under vacancy number NW6-GS0303-06-K140805-C because Complainant had claimed to be a current Agency employee and the position was open to current Agency employees only. See ROI, Attachment 3, p. 2. HR1 further averred, however, that "[a]lthough [Complainant] indicated in her resume that she was a current federal employee, her work experience described in her resume shows she ended her last federal position February 1993. Therefore, she was not referred on the certificate of eligibles because she was outside the area of consideration." Id. In addition, HR1 averred that with this vacancy number, as well as vacancy number NW6-GS0303-05/06/07-41498017-E, no selections were ever made because management cancelled the recruitment action. See id.
With regard to claims 1, 2 and 4, HR1 averred that Complainant was not considered for any vacancies under those OCAs. See id. HR1 further averred that submitted resumes "are electronically fed into the Resumix system. . . . There is no human intervention in the processing of the application resume." Id., p. 3. "Once a request for personnel action is received to fill a specific vacancy, a search of the resumes in the Resumix system is performed to find resumes that match specific search criteria entered. . . .If a resume submitted to an OCA does not meet the search criteria, it does not come up on the matches list and is, therefore, not tracked or reviewed further by the HR specialist." Id.
Following a review of the record, we find that Complainant has also failed to establish a prima facie case with regard to claims 1, 2, and 4. Since the announcement numbers are for OCAs and not for specific vacancies, Complainant cannot show that she was qualified for the specific requirements of a specific vacancy. Nor can Complainant show that anyone was ever selected for a position under these numbers and hence she cannot show that she was treated differently than persons otherwise similarly situated but outside of her protected groups. We note that Complainant herself averred that she did not know specifically who had discriminated against her. See ROI, Attachment 2, p. 2.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 23, 2013
__________________
Date
1 For purposes of this decision the Commission assumes without finding that Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
2 Those non-selections were for a position at the Naval Surface Warfare Center, Carderock (DON0318. NE6-030-02-CAR0455-DE); the National Naval Medical Center, Bethesda (NW6-0318-07-K339388-DE); the International Programs Office (NK0303-02-41416112-DE); the Headquarters Naval District Washington (NW6-0303-06-K142-0805); the Naval Research Laboratory (NE6-NC1105-03-K9359324-I); and the Naval Reserve Force (EA6-0335-07-MJ443196-I).
3 We note that, on appeal, Complainant has not argued that she should have been granted a hearing.
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0120113748
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113748