01995087
04-26-2000
Patricia A. Lewis, Complainant, William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Patricia A. Lewis, )
Complainant, )
) Appeal No. 01995087
) Agency No. HC-98-004
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DECISION
INTRODUCTION
On June 11, 1999, Patricia A. Lewis (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated April 2, 1999, concerning her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> Complainant received the FAD on May 18, 1999. The Commission
hereby accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant failed to prove that the agency discriminated against her
based on race when she was not selected for a position to which she had
applied.
BACKGROUND
Complainant was employed by the agency as a Budget Analyst, GS-13, at
the agency's Headquarters at Fort Belvoir, Virginia. She applied for an
advertised vacancy for the position of Financial Policy Analyst, GS-14,
(the Position), and in May 1997, she was among several candidates referred
on a Competitive Promotion Certificate. An Interview Panel (the Panel) of
three people was convened to interview the candidates, and the complainant
was interviewed. At the end of the interview and selection process,
the complainant was not selected by the Selecting Official (the SO) for
the Position. The Selectee was not of complainant's protected class.
Complainant initiated EEO Counseling on November 20, 1997. She filed
a formal complaint on April 28, 1998, alleging discrimination on the
basis of race (African-American) when, on October 21, 1997, she was
not selected for the position of Financial Policy Analyst, GS-14.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified complainant of her right to request
an administrative hearing. After complainant requested a final agency
decision on the record, the agency issued its FAD on April 2, 1999.
In its FAD, the agency found that the complainant had established
a prima facie case of race discrimination because she was able to
demonstrate that she applied and was qualified for the Position,
but was not selected and the Selectee was not of her protected class.
The FAD further stated that complainant had failed to establish that the
legitimate, nondiscriminatory reason articulated by the agency for its
decision was a pretext for discrimination, and failed to show that she
was �observably superior to the Selectee with regard to any element of
her qualifications.� Complainant timely appeals, without comment.
ANALYSIS AND FINDINGS
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, she 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.
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. 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. 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. 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).
In response to complainant's claims of discrimination, the agency
presented evidence that the Panel chose the Selectee because they judged
her to be a better qualified and superior candidate for the Position.
Each Panel member testified that they found, after the interview
process was concluded, that the Selectee was the candidate they agreed
by consensus was the best candidate for the Position due to her depth of
experience, her knowledge relevant to the Position, and her leadership
abilities. None of the three Panel members rated the complainant to be in
their top three choices for the Position. Consequently, the SO concurred
with the Panel's recommendation and chose the Selectee for the Position.
The Panel and the SO agreed that the complainant's work experience
was not as broad as that of the Selectee. We find that the agency has
articulated a legitimate, nondiscriminatory reason for its action.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
We find that complainant has failed to do so. Complainant argued that
she should have been selected for the Position because she was more
qualified than the Selectee. We find, however, after a thorough review
of the record, that the complainant did not show that her qualifications
were measurably superior to those of the Selectee. In the absence of
such a showing, the agency has the discretion to choose among equally
qualified candidates for a position, and their choice of the Selectee
was not improper. Therefore, the agency's determination that complainant
failed to establish that she was discriminated against was correct.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
04-26-00 __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.