0120065046
11-16-2007
Mary Jo Sciscenti, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (United States Coast Guard), Agency.
Mary Jo Sciscenti,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(United States Coast Guard),
Agency.
Appeal No. 01200650461
Hearing No. 100-A5-0339X
Agency No. HS04USCG000202
DECISION
On September 8, 2006, complainant filed an appeal from the agency's August
11, 2006, final order 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
a Procurement Analyst, GS-1102-14 in the Office of Procurement Management
at Coast Guard Headquarters in Washington, D.C. In approximately
April 2004, complainant filed an EEO complaint alleging that she was
discriminated against on the basis of reprisal for prior protected EEO
activity [arising under Title VII] when:
(1) On August 26, 2003, complainant became aware that she was not selected
for a position as Supervisory Procurement Analyst, GS-1102-15, under
Vacancy Announcement CG-03-01052HQKG-M1, when her second-line supervisor
informed her that her application was not referred for an interview; and
(2) From May through August 2003, complainant's immediate supervisor
denied her request for a temporary detail assignment as a GS-15 to DHS.
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). Complainant timely
requested a hearing and the AJ held a hearing on April 4, 2006 and issued
a decision on July 11, 2006.
In the decision, the AJ found that complainant failed to establish
a prima facie case of retaliation with regard to (1). The AJ further
found that the agency articulated legitimate, nondiscriminatory reasons
for its actions; namely, complainant was certified by the AVUE system2 as
qualified for the position, but was then not interviewed by the selecting
panel because the score she received from the panel was not within the
range of scores of those selected for interviews. Additionally, the
selecting official stated that complainant's score was lower than the
selectees' scores because she focused on her experience in the field,
and management was "looking for more experience at a more strategic rather
than tactical level" and that he was looking for a candidate who possessed
agency-wide or global experience. According to the selecting official,
the only element where complainant scored higher than the selectee was in
ability to supervise. Another panel member testified that complainant's
application was "very weak" and that her application did not discuss
her current position, but focused mainly on her prior position with the
Engineering Logistics Center. He further noted that he knew complainant
possessed policy related experience, but he "could not bring personal
knowledge into it." The other panel member testified that complainant's
"written application did not present a highly qualified candidate"
and notes that she did not find enough significance in complainant's
stated supervisory experience, and that in any event the ability to
supervise did not command as much weight as the ability to analyze.
The AJ found that complainant failed to refute the agency's reasons.
As to (2), the AJ found that complainant failed to establish a prima facie
case of retaliation. The AJ further found that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the detail was denied based on a directive to stop detailing Coast
Guard employees to DHS. The responsible management official stated that
complainant wanted to work with the DHS's credit card office, and that it
was not in the Coast Guard's interest to lose complainant's expertise so
that she could work on the uncomplicated and "straightforward" matters
that would be required of her in the credit card office. The AJ found
that complainant did not establish pretext. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
On appeal, complainant makes the following principal arguments: first,
she contends that the report of investigation was flawed because it
did not contain a summary of the investigation or a discussion and
analysis of the evidence. Additionally, complainant contends that
the AJ improperly framed the issue in (1) as a nonselection, when it
was properly defined as a denial of the right to compete for the job
in question. Complainant also contends that the AJ's decision ignores
evidence presented at the hearing. In reply, the agency contends that the
Report of Investigation does contain a summary of the investigation into
complainant's complaint. Additionally, the agency states that arguing
that the AJ's findings "must be overturned because of a technical flaw in
the ROI ignores the extensive record upon which the findings are based."
Additionally, the agency contends that complainant's argument that the
issue as to (1) was improperly framed is purely semantics, and did not
impede complainant's pursuit of her allegation of retaliation. The agency
further denies that complainant's examples of evidence supporting her
position, which the AJ allegedly ignored, come close to demonstrating
that the findings are clearly erroneous.
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. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
First, we note that in the instant case, the investigative file contains
sufficient information (supplemented by the hearing transcript) 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. This regulation requires the agency to develop an
impartial and appropriate factual record upon which to make findings
on the claim or claims raised in the complaint. Id. � 1614.108(a).
"An appropriate factual record is one that allows a reasonable fact
finder to draw conclusions as to whether discrimination occurred." Id.
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
As to (1), the agency articulated legitimate, nondiscriminatory reasons
for not interviewing complainant, namely, her application was weak, and
even if complainant possessed the needed experience for the position,
her application did not adequately reflect that she had this experience.
The AJ's finding that complainant did not establish retaliatory animus,
is supported by substantial evidence in the record.
As to (2), assuming complainant established a prima facie case of
retaliation the agency has articulated legitimate, nondiscriminatory
reasons for denying the detail request, namely, they were not granting any
more details and they did not want to lose complainant's expertise so that
she could be detailed to a position which involved very straightforward
work. The AJ's finding that complainant failed to establish pretext,
is supported by substantial evidence in this record.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the 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
November 16, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The AVUE system is the Coast Guard's automated system for accepting
and evaluating applications. It establishes a best qualified list to
forward to the selecting official.
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0120065046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036