01A30310
08-14-2003
Mamie L. Wandick, Complainant, v. Donald L. Evans Secretary, Department of Commerce, Agency.
Mamie L. Wandick v. Department of Commerce
01A30310
08-14-03
.
Mamie L. Wandick,
Complainant,
v.
Donald L. Evans
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A30310
Agency Nos. 99-54-00831, 99-54-00943, 0054-00815
Hearing Nos. 280-A0-4276X, 280-A0-4331X, 280-A1-4143X
DECISION
On August 18, 2002, the agency adopted without modification the
decision of the EEOC Administrative Judge (AJ) regarding complainant's
equal employment opportunity (EEO) 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. Complainant timely
initiated an appeal from the agency's final order. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
For the relevant time period, the record reveals that complainant held two
positions at the agency's National Oceanic and Atmospheric Administration,
Office of Finance and Administration, Central Administrative Support
Center facility. Beginning in May 1993, complainant was a GS-12 Contract
Specialist in the agency's Acquisitions Management Division. She was
temporarily promoted, however, to a GS-13 Contract Specialist, acting
in a Team Leader Capacity from August 29, 1999 through November 21,
1999.<1> Complainant filed three formal complaints of discrimination
dated August 16, 1999, November 11, 1999 and April 7, 2000. Within the
three complaints, complainant identified numerous instances of her
non-selection for various positions at the agency from 1990 to 2000.
Accepted for investigation were four separate positions for which
complainant was not selected or not qualified, while the rest of the
allegations were dismissed for being the subjects of a prior complaint or
untimely filed. In the claims accepted for investigation, complainant
alleged that the agency had discriminated against complainant on the
bases of race (African-American), color (Black), and reprisal for prior
EEO activity when:
From January through June 1999, she was denied the opportunity to be
temporarily promoted to the vacant position of Supervisory Financial
Manager, GS-505-13;
On May 19, 1999, she was not selected for the position of Supervisory
Financial Manager, GS-505-13, vacancy number C/CCASC/99001.TIO;
In September 1999, she was not selected for any of three positions as
a Supervisory Accountant, GS-510-13, vacancy number C/CASC/99014.TIO;
In February 2000, she was not selected for Supervisory Management and
Program Analyst Position, GS-343-13, vacancy number C/CASC/00001.TIO.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The three formal complaints were consolidated for the
hearing. The complaint was amended by Order of the AJ on October 16,
2001 to add two additional claims. Complainant alleged that the agency
had discriminated against her on the bases of race (African-American),
color (Black), and reprisal for prior EEO activity when, on March 1, 2001,
she was notified that she was not qualified for Supervisory Accountant
position, GS-510-13, vacancy number C/CASC/01013.ADT, and in June 2001,
she was consequently not selected for that position. Following a hearing,
the AJ issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination based on race, color and reprisal with regard only to
her non-selections to the Supervisory financial manager position in May
1999 and the Supervisory Management and Program Analyst position in
February 2000. The AJ determined that complainant did not establish
a prima facie case in her other claims because she could not show
that she was qualified for the positions applied for, nor show a
causal nexus between the alleged discriminatory action and her prior
protected activity. Using the three part evidentiary analysis set forth
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), the AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, and that the complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination/retaliation.
The agency's final order implemented the AJ's decision.
Complainant's appeal recognizes the following as the issues of contention:
(1) on May 19, 1999, she was not selected for the position of Supervisory
Financial Manager, GS-505-13, vacancy number C/CCASC/99001.TIO, (2)
in September 1999, she was not selected for any of three positions as a
Supervisory Accountant, GS-510-13, vacancy number C/CASC/99014.TIO, (3)
in February 2000, she was not selected for Supervisory Management and
Program Analyst Position, GS-343-13, vacancy number C/CASC/00001.TIO,
and (4) In June 2001, she was not selected for Supervisory Accountant,
GS-510-13, vacancy number C/CASC/01013.ADT. Complainant contends that
the AJ erred on a number of factual findings.<2> She states that she
established a prima facie case in all instances alleged. The agency's
brief on appeal asks the Commission to affirm the AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Although the initial inquiry of discrimination usually focuses on whether
the complainant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,
the inquiry shifts from whether the complainant has established a
prima facie case to whether s/he has demonstrated by preponderance of
the evidence that the agency's reasons for its actions merely were
a pretext for discrimination. Id.; see also United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Assuming arguendo that complainant has established a prima facie case
for the above mentioned claims, the agency has articulated legitimate,
nondiscriminatory reasons for complainant's non-selection.
Regarding claims (1) and (3) of complainant's issues on appeal, the
agency stated that the selectees were better qualified than complainant.
The Commission finds that complainant failed to present evidence that,
more likely than not, the agency's articulated reasons for its actions
in these two instances were a pretext for discrimination. In reaching
this conclusion, we note that an employer has discretion to choose
among equally qualified candidates, so long as the decision is not
based on unlawful criteria, and in the absence of such evidence,
the Commission will not second guess the agency's assessment of the
candidate's qualifications for the position. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Additionally,
in non-selection cases, pretext may be found where the complainant's
qualifications are demonstrably superior to the selectee's. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). After review of
the record, we find that although complainant's qualifications are
impressive, complainant has not submitted evidence that her qualifications
were demonstrably superior to those of the selectees. Furthermore,
complainant has not presented any other evidence to establish that the
agency's actions in these instances were motivated by discriminatory
animus toward complainant.
For claims (2) and (4), the agency determined complainant to be
unqualified for the position because she did not meet the positive
education requirement for accounting positions. This requirement is set
out in detail in the Office of Personnel Management's (OPM) qualification
standards for positions in the accounting series. Complainant argues
that she had the requisite degree in public administration that was
supplemented by 24 semester hours of accounting classes.
It is undisputed that complainant has a bachelor's degree in mathematics
and a masters degree in public administration. To determine whether
complainant met the positive education requirement, the official who
reviewed the qualifications of complainant (RO) stated that accounting
classes are verified according to the OPM qualification standards.
RO stated that a course is a qualified accounting course if it comes from
the accounting division of a university, where �accounting� is in the
title or in the course number. She testified that if a course is not
in the accounting department of the university, the applicant bears the
burden to prove that accounting is the major subject matter of the course.
Complainant and RO met to discuss her non-qualification and education,
and RO stated that she consulted with complainant's schools to determine
if certain courses were appropriately deemed accounting courses because
complainant wanted a thorough review of her course work. Two courses
were disqualified.
In response to these legitimate, non-discriminatory reasons for
the agency's actions, complainant discusses the qualifications of
two of her competitors (C1 and C2) for the agency's job vacancies
at length. However, complainant's references to their qualifications
for positions in 1993 do not have an impact on their qualifications
for the positions in 1999 and 2000. The record shows that C1 and C2
both met the OPM's qualification standards at the time the claims on
appeal occurred. Complainant argues on appeal that the agency counted
C1's courses in Legal & Ethical Environment of Business and Computer
Applications in Accounting, while it did not count her course in
Legal Framework and Financial Management of Non-profit Organizations.
In addition, she argues that the agency counted Business Math and
Principles of Economics and Introduction to Data Processing for C2, but
did not count her courses similar to these. RO stated that the applicant
bears the burden to prove that accounting is the major subject matter
of the course if the course is not a part of the accounting department.
The record shows that complainant did not meet her burden in this regard.
Furthermore, complainant did not provide evidence to show that the
curriculum of these comparative courses were similar to her own.
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and the arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
order.
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
___08-14-03_______________
Date
1This is complainant's employment background according to the agency
and complainant. The Administrative Judge misstated complainant's
employment background as being a GS-13 Contract Specialist for the
relevant time period. Complainant, as well as the agency, noted this
in their statements on appeal. This fact, however, is of no consequence
to the outcome of the case.
2The Commission notes that many of complainant's contentions on appeal
concern factual errors which are irrelevant to the alleged issues of
discrimination and retaliation. Relevant allegations will be discussed
as appropriate.