01A42239_r
06-23-2004
Nona M. Spotts, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Nona M. Spotts v. Department of the Air Force
01A42239
June 23, 2004
.
Nona M. Spotts,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A42239
Agency No. 6X1S02029F04
Hearing No. 320-2003-08008X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Budget Analyst, GS-0560-11, at the
agency's 10th Air Base Wing (ABW)/Financial Management Analysis (FMA),
Staff Section, United States Air Force Academy (USAFA), in Colorado,
filed a formal EEO complaint on April 9, 2002, alleging that the agency
discriminated against her on the bases of race (African-American),
national origin (black), and color (black) when on February 13, 2002,
she was not selected for a promotion to a Supervisory Financial Analyst,
GS-0560-12 (Supervisory Budget Analyst) position at the agency's Peterson
Air Force Base (AFB).<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following the November 12 and 13, 2002
hearings, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of race
discrimination.<2> The AJ further concluded that the agency articulated
legitimate, nondiscriminatory reasons for complainant's non-selection.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination.
The AJ found that the selecting official (SO) requested a Career Program
Referral list for the two Supervisory Budget Analyst positions. The AJ
found that in the list, thirty-two candidates, including complainant,
were identified as being qualified for the subject position. The AJ found
that the SO decided not to interview any of the candidates, as was her
practice. The AJ noted that the SO stated she used the following criteria
in order of importance: GS-560/561 21st Wing Experience; GS-560-11,
Budget Analyst experience; performance awards (past three years) more
credit for Quality Step Increases (QSI)); performance appraisals (past
three years); nine appraisal factors (past three years); training; and
education. The AJ noted that the SO selected two selectees (S1 and S2)
for the subject positions. The AJ further noted that at the time of the
selection, S1 and S2 were working temporarily in the subject positions.
Regarding the awards criteria (past three years), the AJ noted that S1
received three performance awards; S2 received two performance awards and
one QSI; and complainant received three performance awards. Regarding
the performance evaluations criteria (past three years), the AJ noted
that S1 received �superior, acceptable, and acceptable" evaluations;
S2 received "superior, acceptable, and acceptable" evaluations; and
complainant received "excellent, acceptable and acceptable" evaluations.
Regarding the nine appraisal factors criteria (past three years), the AJ
noted that S1 received a score of 81, 81 and 81 in her nine appraisal
factors; S2 received a score of 79, 81 and 81 in her nine appraisal
factors; and complainant received a score of 78, 81 and 81 in her nine
appraisal factors. Regarding the GS-560-11 Budget Analyst experience
criteria, the AJ noted S1 received 2 years and 3 months of experience;
S2 received 10 years of experience; and complainant received 1 year and
9 months of experience. Regarding the 560-561 Wing Experience criteria,
the AJ noted S1 received 5 years and 5 months of experience; S2 received
10 years and 11 months of experience; and complainant received 2 years
and 1 month of experience. Regarding the 21st Wing Experience criteria,
the AJ noted S1 received 5 years and 5 months of experience; S2 received
9 years of experience, while complainant had no experience.
Furthermore, the AJ noted that it was the SO's determination that she put
more emphasis on the 21st Wing experience because she needed two selectees
to immediately assume the duties of the subject positions rather than
having to train a new selectee for a period of time. The AJ further
noted that the SO stated that she did not select complainant for either
subject position because of her lower performance factors and performance
appraisals; and limited wing experience and 21st Wing experience.
The AJ found no evidence to support complainant's contentions that she
was more qualified than the selectees.
The agency's final order implemented 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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We discern no basis to disturb the AJ's finding of
no discrimination. Therefore, after a careful review of the record,
we AFFIRM the agency's final order implementing the AJ's finding of
no discrimination.
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
June 23, 2004
__________________
Date
1The record reveals that in her formal
complaint, complainant did not specify her national origin. The record
further reveals that during her November 12, 2002 testimony, complainant
specified her national origin as "black."
2The Commission notes that the AJ did not address whether complainant
established a prima facie case of discrimination on the basis of national
origin. Because we determine that the agency articulated a legitimate,
non-discriminatory reason for not selecting complainant, as more fully
discussed below, we find it unnecessary to address this issue further.