01a12062
07-10-2002
LuAnn Watkins, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
LuAnn Watkins v. Department of the Air Force
01A12062
.
LuAnn Watkins,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A12062
Agency No. 9V1M00223
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. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that on February 1, 2000, complainant was not referred
for promotion consideration for a temporary position as Information
Management Specialist. When complainant was not referred, she sought
EEO counseling and subsequently filed a formal complaint on March 10,
2000, claiming that she was discriminated against on the bases of race
(African-American) and reprisal for prior EEO activity. On April 4,
2000, an investigation was initiated to address the issues raised in
the complaint. 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 failed to establish
a prima facie case of race discrimination because she was unable to
demonstrate that other employees were treated differently than she was
under similar circumstances. The agency further concluded that assuming
complainant had established a prima facie case of race discrimination,
it determined that a legitimate nondiscriminatory reason was presented
for its actions. In reaching this conclusion, the agency noted it did
not consider complainant for the promotion because it used a Promotion
Referral System (PRS) to rank and identify candidates for vacant
positions. Moreover, the PRS only refers the ten most highly ranked
employees as candidates. The record reflects that since complainant
was ranked 19th by the PRS she was not forwarded for consideration for
the position.
The agency also found that complainant had failed to establish a prima
facie case of reprisal. The agency determined that complainant had
shown that: (1) she had engaged in prior protected activity; (2) the
responsible management official was aware of her prior protected activity;
and (3) she was disadvantaged by the responsible management official's
action. The agency determined, however, that complainant had failed to
show that there was a casual connection between the protected activity and
the alleged discriminatory action. Specifically, the agency concluded
that complainant would not have been referred for the position whether
she had filed a previous EEO complaint or not because the agency used a
predetermined ranking system to identify candidates for vacant positions.
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, she 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).
Complainant contends the real reason she was not referred for the position
was discrimination. Complainant claims that she is a more qualified
candidate for the promotion because she believed that the selectee had
poor work skills and performance. Complainant further asserts that
following the filing of her prior EEO claims, her Supervisor gave her
lower evaluations score, which effected her ranking in the PRS.
Upon review, the Commission finds that the record supports a determination
that the agency articulated a legitimate, nondiscriminatory reason for its
actions. Specifically, the agency contends that the Supervisor did not
consider complainant for the promotion because her name was not included
on the list of candidates referred by the Civilian Personnel Office (CPO).
The record reveals that CPO referred candidates for vacant positions
based on the PRS, a ranking system. In accordance with agency procedure,
the CPO used the PRS to identify the top ten highly ranked employees
and referred them to the agency when vacant positions became available.
The PRS list contained nine Caucasian candidates and one American Indian
candidate. An employee's PRS ranking is based on evaluations submitted by
the Supervisor. Complainant asserts that the Supervisor purposefully gave
her a low evaluation score because of her race and prior EEO activity.
However, complainant has failed to provide sufficient evidence that
the Supervisor's motivation for giving her a low evaluation score was
discrimination. Complainant was ranked 19th on the PRS list, therefore
was not even considered as a qualified candidate for the vacant position.
The record also reflects other individuals outside of complainant's
protected class were also not considered for the promotion because they
did not have the requisite top ten PRS ranking. The Commission notes that
complainant has not proven that as a result of the agency using the PRS,
she was treated any differently from similarly situated employees.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reason for not
considering her for the promotion was pretext for discrimination.
Accordingly, the FAD finding no discrimination is AFFIRMED.
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
7/10/02
Date