01A14718
09-26-2002
Maria S. Parra, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Maria S. Parra v. Department of Housing and Urban Development
01A14718
September 26, 2002
.
Maria S. Parra,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A14718
Agency No. SE9202R2
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. Complainant alleged that she was discriminated
against on the basis of her national origin (Hispanic) when:
(1) in January 1981, she was not selected for Director of Fair Housing
and Equal Opportunity (FHEO) under Vacancy No. SRO-18-81;
on February 15, 1991, she was not selected for Chief of Fair Housing
Enforcement Branch (FHEB) under Vacancy No. 10-MSR-91-006;
on July 22, 1991, she was not selected for Regional Homeless Coordinator
under Vacancy No. 10-RBS-91-0127;
on November 4, 1991, she was not detailed as Acting Program Operations
Division (POD) Director;
in December 1991, she was not promoted as Acting POD Director;
on March 18, 1992, she was not detailed as Acting POD Director; and
Complainant additionally alleged that she was discriminated against on
the basis of her national origin and reprisal for prior EEO activity
(protected by Title VII) when:
on July 2, 1992, she was not selected as POD Director under Vacancy
No. 10-MSR-92-0016.
The record reveals that from approximately 1983 to 1993, complainant
was employed by the agency as an Equal Opportunity Specialist (EOS),
GS-360-12, at the Seattle Regional FHEO Compliance Office in Seattle,
Washington. Believing she was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
July 31, 1992. The agency initially dismissed the instant complaint.
On appeal, the Commission reversed and remanded the agency's dismissal,
finding insufficient evidence on the timeliness of the claims, and ordered
the agency to gather additional information regarding timeliness.<1>
See Parra v. Department of Housing and Urban Development, EEOC Appeal
No. 01992982 (March 23, 2000). 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 a second FAD, dated June 6, 2001, the agency again dismissed claims
(1) through (3) on the basis that complainant failed to timely contact
an EEO Counselor. The FAD proceeded to address the merits of claims
(4) through (7). The FAD found that complainant established a prima
facie case of national origin discrimination. As to claim (7), the
FAD found that complainant failed to establish a prima facie case of
retaliation because she did not show that the selecting official (S1)<2>
or the rating panel had knowledge of her prior EEO activity. The FAD
however, assumed arguendo, that complainant established a prima facie
case of retaliation, and found that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant for the position
of Acting POD Director. The FAD further found that complainant failed
to show that she was more qualified than the selectees.
On appeal, complainant reiterates her belief that discrimination is
systemic against Hispanics at the agency and particularly in her region,
Region 10. Complainant contends that she is more experienced and has
more education than several of the selectees. She maintains that S1 and
the rating panel were aware of her prior EEO activity at the relevant
times. Complainant also contends that the investigation was inadequate.
The agency requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD 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). In the instant case, we find that the investigative
file contains sufficient information upon which to determine whether
or not the complained-of agency action was the result of an unlawful
discriminatory motive. The requirement that an agency investigate
complaints of discrimination is codified at 29 C.F.R. � 1614.108.
Initially, we find that issues (1) through (5) are untimely, and subject
to dismissal under 29 C.F.R. � 1614.107(a)(2). Issues (6) and (7),
however, were timely raised before an EEO Counselor,<3> therefore,
we address the merits of those two issues. Assuming, arguendo,
that complainant established a prima facie case of discrimination
on the alleged bases, we turn to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. As to issue (6), a review of
the record reveals that at the time of the investigation, S1 had retired,
and the EEO investigator could not locate him to address this claim.
See ROI, Investigator's Summary, at p. 14. The FAD, however, makes
reference to a letter, dated March 13, 1992, from S1 to complainant, in
which S1 addresses her concerns that she was being discriminated against
by being continuously denied the opportunity to �act� in the POD position.
S1 apparently stated that the individual who was temporarily selected
for the position was more qualified than complainant. He apparently
additionally stated that the selectee had been an Equal Opportunity
Specialist since 1976 and had served as the Director of the Compliance
Division for six years. S1 also apparently denied discriminating
against complainant, and stated that his selection process was fair
and impartial. Although the letter itself is missing from the file,
complainant does not specifically dispute its existence or challenge the
agency's description of its contents. We note that the agency's burden of
articulating a legitimate, nondiscriminatory reason for its action is not
an onerous one, and as such, we find that the agency has met its burden.
As to issue (7), a member of the Selection Panel (P1) asserts that the
selectee was chosen because of her responses to the interview questions.
See ROI, Ex. 8, at 2. Another member of the Panel (P2) asserts that he
does not recall the selection process, but states �If we recommended [the
selectee], it would be because she scored the highest number of points.�
Id., at Ex. 9, p. 2. Both Panel members denied that S1 influenced the
process of the Panel in any way. Complainant has presented several
challenges to the agency's articulated reasons, however, we are not
persuaded by a preponderance of the evidence, that the agency's reasons
were pretexts for retaliation or discrimination. In so finding, we
note that the agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing
authority absent evidence of unlawful motivation. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of
the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant
may be able to establish pretext with a showing that her qualifications
were plainly superior to those of the selectee. Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). Despite complainant's impressive
credentials, she has not established that her qualifications for the
position in question are plainly superior to either of the selectees.
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
September 26, 2002
__________________
Date
1 The Commission affirmed the agency's dismissal of claim (8).
2 The record reveals that, at the time, S1 was the former Director of
the Washington State Office of Fair Housing and Equal Opportunity.
3 The record reveals that complainant first sought EEO counseling in or
about April 1992.