0120083543
04-01-2010
Marla Jo Negrete, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Executive Office of the U.S. Attorneys), Agency.
Marla Jo Negrete,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Executive Office of the U.S. Attorneys),
Agency.
Appeal No. 0120083543
Agency No. 1878202
DECISION
On August 15, 2008, complainant filed an appeal from the agency's July 8, 2008 final decision 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 appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
Complainant began working for the agency in 1994. During the period at issue, complainant worked as a Legal Assistant in the Major Frauds Unit of the agency's United States Attorney's Office, Southern District of California. On April 2, 2007, complainant filed the instant formal EEO complaint. Therein, complainant claimed that she was discriminated against on the bases of race (white), religion (Jewish), disability (facial tic), and in reprisal for prior protected EEO activity when:
in December 2006 she was not selected for a GS-9/11 paralegal specialist position.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Consistent with complainant's request, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision assumed that even if complainant had established a prima facie case of discrimination on all of her alleged bases, complainant failed to prove the agency's explanation for its selection was a pretext for unlawful discrimination.
The agency stated that a five-member panel interviewed the six most qualified applicants for the position, including complainant. The panel consisted of the Administrative Officer, a Paralegal Specialist, the Chief of the Narcotics Enforcement Section and two Assistant US Attorneys (AUSAs), one of whom was the Supervisor of the Litigation Support Unit.1 The panel unanimously agreed on the three most qualified candidates, one of whom was unanimously considered to be the top qualified candidate. Complainant was not considered to be one of the top three candidates, and one of the panel members described her as the least qualified. The Administrative Officer was the selecting official. The Administrative Officer offered the position to the top qualified candidate, who accepted it.
Complainant's proof of pretext consists of her belief that she was more qualified than the selectee.2 The agency notes that the five member interview panel did not agree with complainant's self assessment but that even if the candidates were considered equally qualified, management had discretion to make the selection provided that it was not based on unlawful criteria. The agency found that complainant failed to prove that the panel's judgment was infected with any discriminatory intent.
CONTENTIONS ON APPEAL
On appeal, complainant argues that she was better qualified than the selectee based on her years of experience, her education, her awards and her letters of recommendation. Complainant states that the agency's explanation for not hiring her is "absurd" and leads one to conclude that there was a different, unstated reason for her non selection which "could only be" her protected bases. The agency submitted a brief in response requesting that we affirm its final decision for the reasons stated therein.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Initially, we remind complainant that the agency's burden is to articulate a legitimate and non discriminatory reason for its selection, not to justify its decision not to select complainant. Upon review of the record and assuming arguendo a prima facie case of discrimination, we find that the agency articulated the following legitimate, nondiscriminatory reasons for selecting the selectee:
(1) she had "done outstanding work in [the U.S. Attorney's] Office as a Legal Assistant;"
(2) she had previous experience "in a criminal law office where she single-handedly supported the work of four busy attorneys," including "organizing case materials, helping to prepare for trials, drafting pleadings and appellate briefs, conducting legal research, and working with clients and their families;"
(3) attorneys in the U.S, Attorney's Office thought "very highly of her" and her "willingness to help when the work requires;"
(4) she had often "volunteered to assist paralegals in large investigations by
indexing materials, organizing investigative documents and synchronizing audio
recordings;"
(5) she was "extremely computer literate" and was the only applicant with knowledge of Concordance and Sanction software packages "used extensively by paralegals" in the U.S. Attorney's Office; and
(6) she worked "with virtually no supervision; she can handle a number of tasks simultaneously; she is motivated; and she has a pleasant 'can-do' attitude."
There is no evidence in the record to support a finding that these were not the real reasons the panel recommended the selectee. There is no evidence to suggest that the selectee's performance and skills were inconsistent with the panel's assessment or that complainant's were so superior as to call their judgment into question. Years of service do not automatically equate to valuable experience. Complainant admits that she herself did not have knowledge of the Concordance and Sanction software packages. Complainant's claim that the panel members were motivated by unlawful animus is based on speculation, not evidence. For this reason we find that she fails to meet her burden of proof.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 1, 2010
__________________
Date
1 Complainant complained that she should not have to interview with the Supervisor of the Litigation Support Unit because that AUSA had documented her belief that complainant was not an exemplary employee, was divisive and made it difficult for the office to get other legal assistants to agree to work in the Major Frauds Unit. Agency management told complainant that because the AUSA in question was the supervisor for the paralegal section, she needed to participate in the interviews and the interview panel needed to be consistent for all the applicants. We note that the above referenced documentation predated any of complainant's EEO activity.
2 Complainant filed a similar complaint in 2004 when she was not selected for a Supervisory Secretarial position. Complainant argued then that she was more qualified than the selectee. The Commission affirmed an EEOC Administrative Judge's decision finding that complainant failed to provide any evidence that the selection was unlawfully motivated. See Negrete v. Department of Justice, EEC Appeal No. 0120070661 (May 27, 2009).
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0120083543
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013