Maria S. Parra, Complainant,v.Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionSep 26, 2002
01A14718 (E.E.O.C. Sep. 26, 2002)

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.