01A02224_r
04-18-2002
Patricia Navas, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Patricia Navas v. Department of the Interior
01A02224
April 18, 2002
.
Patricia Navas,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A02224
Agency No. FNP-97-044
Hearing No. 370-97-X2836
DECISION
Pursuant to 29 C.F.R. �1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant, an Administrative Support Clerk, GS-05, filed a complaint in
which she claimed that the agency discriminated against her on the bases
of her race (Hispanic), national origin (Panamanian), and in reprisal for
her previous EEO activity under Title VII when she was not selected for
the following positions on February 26, 1996: (1) an Administrative
Support Assistant position in Information Management (PGSO-96-04);
(2) a Budget Assistant position in the Office of the Superintendent
(PGSO-96-05); and (3) an Administrative Assistant position in Facilities
Management (PGSO-96-06).
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ). A hearing was held on October 27-28,
1999. Subsequent to the hearing, the AJ issued a decision finding
that no discrimination occurred with regard to each of complainant's
nonselections. The agency issued a final order dated December 15, 1999,
adopting the AJ's decision. It is from this final order that complainant
now appeals.
Applying the standards set forth in McDonnell Douglas Corp. v Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission agrees with the agency that complainant failed to establish,
by a preponderance of the evidence, that the agency's articulated reasons
for the three selections at issue were a pretext for discrimination.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Consequently,
we will dispense with an examination of whether complainant established
a prima facie case with respect to the above cited issues and review
below, the reasons articulated by the agency for its actions as well as
complainant's effort to prove pretext.
With regard to the selection for the Administrative Support Assistant
position in Information Management, the selecting official stated that
computer skills and budget skills were the primary skills needed for the
Administrative Support Assistant position. According to the selecting
official, he chose the selectee, an Asian-American, for the position
based on her superior computer skills. The selecting official noted that
the selectee listed on her job application many computer programs with
which she is familiar.<1> The selecting official stated that complainant
only commented on her job application that she has good computer skills.
The selecting official testified that the selectee and complainant were
among several candidates who had roughly equivalent budget experience.
We find that the selecting official's reliance on the selectee's computer
skills represents a legitimate, nondiscriminatory reason for the selection
decision. Complainant argues that the selectee was preselected for the
position as the selectee had been detailed to the position before the
selection decision was made. Assuming arguendo, that the selectee was
preselected for the position, we note that preselection violates Title
VII only if it is premised on a prohibited criterion rather than on the
qualifications of the selectee. Goostree v. State of Tennessee, 796 F.2d
854, 861 (6th Cir. 1986). We find that complainant has not demonstrated
that there was a preselection based on a prohibited factor. We further
find that complainant has not established, by a preponderance of the
evidence, that the selecting official's stated reason for his decision
was pretext intended to mask discriminatory intent. Upon review of the
entire record, including the arguments set forth on appeal by complainant,
we find that complainant has failed to show that her nonselection for the
Administrative Support Assistant position was motivated by discrimination
on the bases of race, national origin, or reprisal.
As for complainant's nonselection for the Budget Assistant position in the
Office of the Superintendent, the selecting official testified that his
initial choice for the position declined the job offer. The selecting
official testified that he chose the selectee over complainant
because the selectee had more budget experience than complainant
on his job application. The selecting official stated that he was
impressed by selectee's experience with the Historic Preservation Fund.
The selecting official also noted the selectee's communication skills and
attention to detail. We find that the agency has articulated legitimate,
nondiscriminatory reasons for its selection decision. Complainant argues
on appeal that the selectee has had problems in the position since his
selection. Complainant also claims that the selecting official had
additional time to make a decision after the initial choice for the
position declined the job offer and that he should have interviewed
the candidates, talked with the candidates' current supervisors, and
reviewed their personnel folders, performance appraisals, and current
position descriptions. We find that any deficiencies on the part of
the selectee that only became evident after his selection do not by
itself establish that the selection was based on discriminatory intent.
We further find that the selecting official's reliance solely on job
applications and the opinions of other management officials in making
his selection decision has not been shown to constitute evidence of a
discriminatory decision-making process. Upon review of the record, we
find that complainant has failed to establish, by a preponderance of the
evidence, that the selecting official's stated reasons for his selection
were pretext intended to mask discriminatory motivation. Therefore,
we find that complainant has failed to establish that her nonselection
for the Budget Assistant position was attributable to discrimination
based on her race, national origin, or her prior EEO activity.
With respect to the selection for the Administrative Assistant position
in Facilities Management, the selecting official testified that he
did not consider complainant for the position because she did not
apply for the position. This explanation constitutes a legitimate,
nondiscriminatory reason for complainant's nonselection. We note
that complainant testified that she did not apply for this position
because she believed that the supervisor for the position would make
the selection and that he would not select her because he did not want
her in Facilities Management. Complainant, however, has not submitted
any persuasive arguments or evidence to show that she believed that the
supervisor for this position did not want her in Facilities Management
due to her race, national origin, or prior EEO activity. We find that
complainant's nonselection for the Administrative Assistant position was
not attributable to discrimination based on her race, national origin,
or her prior EEO activity.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because a preponderance of the record evidence does not establish that
discrimination occurred.
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
April 18, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The selecting official testified that he was only allotted three hours
to make his selection decisions and that he first learned who had applied
for the positions the same day that he made his selections. According to
the selecting official, he utilized the allotted three hours to read the
job applications, rank the candidates, and then consult with individuals
who would be directly or indirectly supervising the selectees.