01990326
04-09-2002
Suzanne M. Shepherd, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Suzanne M. Shepherd v. Department of Justice
01990326
04-09-02
.
Suzanne M. Shepherd,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01990326
Agency No. I-96-7041
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 during the relevant time, complainant was
employed as an Immigration Inspector at the agency's Immigration and
Naturalization Service Office in Portland, Oregon. Complainant applied
for two Deportation Officer positions (Position 1 and Position 2).
Position 1 was posted in July 1995. The Rating Panel reviewed the
applications and forwarded a list of three names, which did not include
complainant, on a Selection Certificate to the recommending official
(RO 1).<1> RO 1 recommended the selectee (Selectee 1) to the Selecting
Official who accepted the recommendation. Position 2 was posted in
November 1995. Complainant was ranked four out of sixty applicants and
the Rating Panel listed her as one of seven on the Selection Certificate
for the recommending official (RO 2). RO 2 and the Selecting Official
interviewed the candidates. Based on the interviews and applications,
RO 2 recommended the selectee (Selectee 2). The Selecting Official
agreed with RO 2's recommendation of Selectee 2 over complainant.
Believing she was a victim of discrimination, Complainant sought EEO
counseling and subsequently filed a formal complaint on May 29, 1996.
She alleged that the agency discriminated against her on the basis of sex
(Female) when she was not selected for Position 1 or Position 2.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. When complainant
failed to respond within the time period specified in 29 C.F.R. �
1614.108(f), the agency issued a final decision finding no discrimination.
On appeal, complainant contends that the District Director stated that
there was a need for female Deportation Officers and she noted that over
the years in Oregon, the number of officers went from eight to thirty
and not one was a woman. She also argues that RO 1 was a sexist and did
not listen to the District Director's order for more female Deportation
Officers. Finally, she stated that since she and Selectee 2 were so
close, the addition of RO 1's attitudes was taken into consideration and
was the reason she was not chosen. The agency requests that we affirm
its FAD.
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 Bd. 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).
Upon review we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. As to Position 1, the
agency indicated that the Rating Panel reviewed the applications and
ranked complainant tenth out of fifty-eight applicants for the position.
The Review Panel only forwarded three names to RO 1 and complainant's
name did not make it to the Selection Certificate. Therefore, she was
not considered by RO 1 for Position 1. Furthermore, the agency indicated
that Selectee 1 was the most qualified candidate on the certificate for
Position 1.
As to Position 2, the agency indicated that complainant was ranked
fourth out of sixty applicants and the Rating Panel placed her name as
one of seven on the Selection Certificate. RO 2 reviewed and scored the
applications. Complainant's and Selectee 2's scores were very close,
RO 2 decided to interview both of them. Thereafter, RO 2 recommended
Selectee 2 over complainant. In particular, RO 2 indicated that Selectee
2 scored higher in the evaluation based on his law enforcement experience
with the Federal Bureau of Investigation (FBI), an FBI task force, and the
Drug Enforcement Agency. RO 2 also stated that Selectee 2 "sold himself"
during the interview and answered questions better than complainant.
Accordingly, he recommended Selectee 2 and the Selecting Official adopted
RO 2's recommendation.
Once the agency has met its burden, the burden shifts to complainant to
establish that the agency's reasons were pretext for sex discrimination.
Complainant contends that RO 1's alleged statement that he would
not select a woman for a Deportation Officer position resulted in
the non-selections in Position 1 and 2. As to Position 1, however,
the Rating Panel chose not to forward complainant's name for selection
to RO 1. There is no evidence indicating that the Rating Panel was in
any way tainted with a discriminatory animus toward complainant's sex.
Therefore, we find that complainant failed to establish her claim of
discrimination in Position 1.
As to Position 2, complainant claims that Selectee 2 was preselected
by RO 1 because he can speak Chinese and was heavily recruited by the
Federal Bureau of Investigation. She also argues that she has been with
the agency for a longer period of time and that Selectee 2 had little
deportation experience and only worked as an Immigration Inspector.
The record, however, indicates that although RO 1 provided assistance to
RO 2 on the process, the actual recommendation decision was solely that
of RO 2. Further, as to her claims that Selectee 2 was preselected,
she offered no persuasive evidence that pre-selection, if it occurred,
was based on discriminatory animus.<2> Accordingly, based upon a review
of the record, we find that complainant failed to establish that the
agency's reasons for its action were pretextual.
CONCLUSION
Therefore, after a careful review of the record, we affirm the FAD.
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
__04-09-02________________
Date
1We note that RO 1 was not a member of the Rating Panel.
2We note that while evidence of pre-selection or favoritism may act
to discredit an agency's explanation for its selection, pre-selection
does not violate Title VII when it is based on the qualifications of the
selectee and not some basis prohibited by Title VII. Goostree v. State
of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).