01a55023
11-10-2005
Selina L. Sands, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Selina L. Sands v. Department of Transportation
01A55023
November 10, 2005
.
Selina L. Sands,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A55023
Agency No. 04-54-00090
Hearing No. 120-2005-00221X
DECISION
Complainant filed an appeal with this Commission from the agency's June
15, 2005 decision finding no discrimination.<1>
The agency defined the complaint, dated December 6, 2000, as whether
the agency had discriminated against complainant on the bases of race
(African-American) and color (black) when she was not selected for
the position of Administrative Officer GS-341-9/11, announced under
vacancy announcement number H/NOS/G/00213.JMM.<2> The record indicates
that complainant learned that she was not selected for the position in
October 2000.
After the complaint was investigated, complainant requested a hearing
before an EEOC Administrative Judge (AJ). While the case was pending
before the AJ, the AJ issued a Partial Dismissal and Notice of Intent
to Issue Decision without a Hearing, dated February 16, 2005. In his
decision, the AJ noted that complainant attempted to, in the AJ's words,
�re-characterize her claim as that of being an obese, African -American
female who was sitting in a hostile work environment.� The AJ also
stated that complainant failed to state which events constituted
a hostile work environment. The AJ found that these matters were
not raised with an EEO Counselor and that complainant failed to state
what events constituted the hostile work environment. The AJ rejected
complainant's attempt to �re-characterize� her complaint.
In an Order of Dismissal, dated April 19, 2005, the AJ dismissed
complainant's request for a hearing and remanded the case to the agency
for a decision as a sanction pursuant to EEOC Regulation 29 C.F.R. �
1614.109(f)(3) because complainant failed to comply with the AJ's order
compelling discovery. The AJ noted in his dismissal of the hearing
request that complainant had failed to provide an explanation for her
failure to comply with his discovery order.
In its decision, the agency concluded that complainant had failed
to establish a prima facie case of race or color discrimination.
The agency noted that although complainant identified her protected bases
as race and color and showed that she was qualified for the position,
the selectee was of the same race and color as complainant. The agency
also concluded that it had articulated a legitimate, nondiscriminatory
reason for its selection. The agency noted that both complainant and the
selectee were qualified for the position and complainant had not shown
that her qualifications were observably superior to the qualifications of
the selectee. The agency also noted that the selectee was performing
in a position similar to the one for which she was selected and that
the selectee's work habits were more compatible and desirable with the
functions of the Administrative Officer position.
The agency also noted that complainant did not contest the agency's
acceptance of just the one nonselection claim. On appeal, complainant
does not challenge the framing of the complaint. We agree with the agency
and we reject complainant's attempt to re-characterize her complaint.
The Commission finds that the AJ properly remanded the matter to the
agency for a decision as a sanction for complainant's failure to comply
with the discovery order. Complainant does not provide any reason for
not complying with the AJ's discovery order and does not provide any
reason why the AJ's sanction was improper.
To establish a prima facie case of race or color discrimination, a
complainant must show the following: (1) complainant was a member of the
protected class; (2) an adverse action was taken against complainant;
(3) a causal relationship existed between complainant's membership in
the protected class and the adverse action; and (4) other employees
outside of complainant's protected class were treated differently.
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. 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 or 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000).
The Commission next finds that complainant has failed to establish a
prima facie case of race and color discrimination. She has not shown or
claimed on appeal that someone not of her race or her color was selected
for the position. Even assuming the existence of a prima facie case, we
find that the agency articulated a legitimate, nondiscriminatory reason
for its selection. The record reveals that eight persons applied for
the position and only complainant and the selectee were certified as
eligible and referred. The record also reveals that the selectee was
African-American. The record reveals further that while complainant and
the selectee were both qualified for the position, that the selectee's
work habits were deemed more desirable to the agency. The record reveals
that complainant's supervisor assessed complainant as an individual who
was not particularly outgoing and one who lacked initiative. The record
also reveals that the selectee's supervisor described the selectee as an
individual who took initiative and needed little supervision on projects.
Years of experience do not necessarily make an applicant for a position
more qualified to meet the needs of an organization or automatically make
one candidate more qualified than another. We note also that although
complainant had an undergraduate degree and the selectee did not,
the vacancy announcement did not require an undergraduate education.
Under the knowledge, skills and abilities (KSAs) requirements for
the position, communications skills were included so that the agency's
reliance on these factors in making their selection was proper. We find
therefore that the agency has articulated a legitimate, nondiscriminatory
reason for its selection. Complainant has not shown by a preponderance
of the evidence that the agency's reasons were mere pretext to mask
unlawful discrimination.
The agency's decision finding no discrimination is AFFIRMED.
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 10, 2005
__________________
Date
1At the time of her complaint, complainant
was employed as a lead Secretary, Office of Aeronautical Charting and
Cartography (ACC) in the agency's National Oceanic and Atmospheric
Administration (NOAA), Department of Commerce. The ACC was transferred
to the Department of Transportation on October 1, 2000. The record
indicates that at some time subsequent to her transfer to the Department
of Transportation, complainant began working for the Federal Aviation
Agency, Department of Transportation.
2The vacancy announcement reflects that the opening date for the position
was September 1, 2000, with a closing date of September 11, 2000.