0120070015
08-30-2007
Paula M. Glass, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Paula M. Glass,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120070015
Hearing No. 130-2005-00230X
Agency No. ARMICOM004SEP0034
DECISION
On September 21, 2006, complainant filed an appeal from the agency's
June 21, 2006, 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).1 For the following reasons, the Commission
affirms the agency's final decision.
During the relevant time, complainant worked as a Logistics Clerk,
GS-303-05, with the U.S. Army Aviation and Missile Command, Integrated
Material Management Center, Maintenance Directorate, at the Redstone
Arsenal in Alabama. In May 2003, the Supervisor Customer Service (SCS)
sought to fill the position of Temporary Supply Technician (GS-2005-07).
Complainant forwarded her resume and supplemental information for the
position, and SCS subsequently selected complainant for the position. SCS
forwarded a Request for Personnel Action (RPA) to the Central Personnel
Office Center (CPOC) for qualification review and appointment. However,
the Human Resource Specialist (HRS) assigned to conduct the review
determined that complainant was not qualified for the position because she
did not possess one year of specialized experience at the GS-6 level. HRS
informed SCS of complainant's ineligibility via e-mail.2 Thereafter, HRS
informed complainant's supervisor (the Supervisor) that he could place
a memorandum in complainant's OPF to enhance her chances for promotion,
and although the Supervisor requested the information from complainant,
complainant failed to provide it. The position was rescinded because
no qualified applicant was found.
On November 1, 2004, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American),
sex (female), and reprisal for prior protected EEO activity when:
1. On August 16, 2004, she discovered information in her official
personnel file (OPF) that may have prevented her from selection to a GS-7
Temporary Supply Technician position in May, 2003, and future promotions,
and caused her to experience harassment; and
2. The information discovered in her OPF on August, 16, 2004,
prevented her from selection to a GS-07 Temporary Supply Technician
position in May, 2004, and for future promotions, and caused her to
experience harassment.
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 but subsequently failed to comply with the AJ's
orders. Consequently, the AJ returned the complaint to the agency for
issuance of a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the agency concluded that complainant failed to prove
that she was subjected to discrimination as alleged. The agency found
that complainant failed to establish a prima facie case of race, sex,
or reprisal discrimination. It then assumed arguendo that complainant
established a prima facie case of discrimination, and found that
management articulated legitimate nondiscriminatory reasons for its
actions. It concluded that, besides her bare assertions, complainant
failed to provide any evidence that management's reasons were pretext
for discrimination.
Complainant filed the present appeal and argues, among other things,
that she was qualified for the position. Moreover, she maintains that
she held a position in the GS-6 grade.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). 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); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The agency articulated legitimate and nondiscriminatory reasons for
its conduct through SCS, HRS, and the Supervisor. Specifically, SCS
testified that he selected complainant for the position in question, and
forwarded an RPA for qualification review and appointment. HRS averred
that complainant's OPF did not reflect that she possessed one year of
specialized experience at a GS-6 level, as required for qualification for
the GS-7 position, and she provided that information to SCS via email.
Finally, the Supervisor testified that he notified complainant that
she could draft documentation regarding her qualification as GS-6, and
he would place the information in her OPF for further consideration,
but complainant failed to provide such documentation.
Since the agency articulated the aforesaid reasons for its actions,
the burden returns to complainant to show that the reasons provided are
pretext for discrimination. Complainant asserts that she was qualified
for the position, and that she held a position in the GS-6 level. She,
however, fails to provide any proof that she held a GS-6 level position
or that the agency knew that she held such a position. Moreover, she
does not refute that the Supervisor provided her with the opportunity to
place documentation in her OPF for further consideration, but she failed
to provide it. For these reasons, we find that complainant has failed
to show by a preponderance of the evidence that the agency discriminated
against her on the bases or race, sex, or in reprisal as alleged in the
present complaint. Based on a thorough review of the record and the
contentions on appeal, including those not specifically addressed herein,
we affirm the agency's final decision.
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
__8-30-07________________
Date
1 In its brief, dated November 14, 2006, the agency maintains
that complainant's appeal is untimely filed because complainant's
representative signed a certified mail return receipt card on June 30,
2005, but complainant did not file the present appeal until September
21, 2006. The agency, however, fails to provide a copy of the return
receipt card with its brief, and although it asserts that a copy of said
card is part of the record, a return receipt card with a signature date
of June 30, 2005 cannot be located therein. Accordingly, the Commission
will review complainant's appeal on the merits.
2 The discussions regarding her qualifications in said e-mail form the
basis of claim (1).
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0120070015
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070015