01a54158
11-08-2005
Terry S. Peardon, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Terry S. Peardon v. Department of the Army
01A54158
November 8, 2005
.
Terry S. Peardon,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A54158
Agency No. ARFORSC03JAN002
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her formal EEO 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.
Complainant, a former agency employee, was an applicant for the position
of Garrison Operations Manager, GS-304-14, at the agency's Directorate
of Plans, Training, and Mobilization, Fort Gordon, Georgia.<1>
Complainant filed a formal EEO complaint on March 13, 2003. Therein,
complainant claimed that she was the victim of unlawful employment
discrimination on the basis of sex (female) when:
on December 19, 2002, she was not interviewed for the position of Garrison
Operations Manager.
At the conclusion of the investigation, complainant was informed of
the right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing but later withdrew the request, and the
agency issued the instant FAD.
In its May 13, 2005 FAD, the agency concluded that complainant failed
to establish a prima facie case of discrimination on the basis of sex.
The agency further concluded that assuming complainant established a
prima facie case of discrimination on the basis of sex, management
articulated legitimate, nondiscriminatory reasons for not interviewing
her for the Garrison Operations Manager position, GS-304-14, as reflected
in a review of the evidence of record discussed below.
The record reflects that the selecting official (SO) received a Resumix
list from the Human Resources office. The Resumix list was comprised
of thirty-five candidates, including complainant, who were identified
as being qualified for the position of Garrison Operations Manager
position, GS-304-14. The SO sought an applicant who �had increased
responsibility that the Army had trust in." Specifically, the SO
stated that the criteria were "hard jobs, the brigade XO, the brigade 3,
battalion commander." After a review of the Resumix list and candidates'
application packages, the SO chose the top thirteen candidates, including
complainant, for further consideration. The SO then selected the top
five candidates with strong operational background to be interviewed for
the subject position. Complainant was not one of the top five candidates
to be interviewed. The SO then established a panel comprised of three
panelists, and instructed the panelists to develop interview questions.
One of the top five candidates withdrew from further consideration; and
another candidate was not considered after the panel made a determined
that the candidate would not be interviewed. The SO was on the panel
with the three panelists that interviewed three top candidates.
Further, the SO indicated that he chose the selectee for the subject
position, finding him the best qualified candidate. Specifically, the
SO stated that the selectee had worked as a Deputy Brigade Commander,
Brigade S3 and Battalion Executive Officer. The SO stated that he did not
select complainant to be interviewed because he found that complainant
did not have the quality control experience that the SO was seeking.
The SO further stated that complainant "just didn't compete against
people who . . . have gone through the system and competed and did well
in the hard jobs."
The SO acknowledged that complainant previously worked as the Director
of Plans, Training, and Mobilization (DPTM) which converted to Garrison
Operations Manager position, the subject position in the instant case.
The SO stated that the former DPTM position "was basically lower level
and less important when [complainant] had it and has evolved." The SO
stated that "it was a very weak association of independent directorates
and . . . I wasn't very impressed with the operation or the structure at
the place." The SO stated that the subject position has since evolved
significantly and after the terrorist attack on September 11, 2001,
with increased responsibilities and requirements.
The record also reflects that one of the three panelists (P1) stated that
he and another panelist (P2) implemented the interview questions for the
five candidates. P1 further stated that although the SO selected five
candidates to be interviewed, he (P1) and P2 noted that complainant used
to be a DPTM. They suggested that the SO speak with several employees
with whom complainant had previously worked in DPTM. P1 stated that
because he previously worked with complainant in DPTM, SO asked him what
it was like working with her, and that he told the SO that complainant
"was argumentative." P1 stated that he shared this opinion with the
SO because the SO had a right to be aware of his opinion. However, P1
also encouraged SO to "go to the DPTM [employees] and other people on
post that may have worked with [complainant] and get their reaction."
P1 stated that the panel did not discuss the candidates' sex during the
selection process.
The record further reflects that P2 stated that he and P1 had a
conversation with the SO during the selection process, wherein he and
P1 indicated that the SO might want to further consider complainant
because she was not on the list of top five candidates to be interviewed.
P2 stated that he understood that the SO spoke to some parties, but that
the SO did not add complainant to the list to be interviewed "because
of the negative reports that he got." P2 stated that while he used to
work with complainant, he never had any confrontations with her.
The record also reflects that the Director of Human Resources (Director)
stated that the selectee was chosen for the subject position based on
his experience and in-depth knowledge gained during his military career.
The Director further stated that the selectee's work experience reflects
the following selection factors: responsibility for staff functions in
current operations, force protection, range operations, Army Reserve,
National Guard and non-tenant support; direct oversight of all budget,
logistics, personnel, readiness and training operations; mobilization
experience; briefing experience; cost/economic analysis experience;
plans, coordinates and supervises work; and education.
Finally, the agency found that complainant did not establish that more
likely than not, management's articulated reasons were a pretext to
mask unlawful discrimination. Complainant argued that the selectee was
preselected; however, the SO stated that there was no preselection.
The SO stated that prior to the vacancy announcement of the subject
position, he only encouraged selectee and a female Lieutenant Colonel to
apply for the subject position. With respect to complainant's argument
regarding preselection, P1 stated that this assertion was not true.
Furthermore, P1 stated that the vacancy announcement for the subject
position was "wide open; anybody could have got it."
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 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). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See 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. See 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. See 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).
Upon review of the record, the Commission finds that the agency
articulated legitimate, nondiscriminatory reasons for its employment
actions, which we determine were not persuasively rebutted by
complainant. Complainant has not demonstrated that the agency's
articulated reasons for its employment actions were a pretext for
discrimination.
Accordingly, the agency's final 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 8, 2005
__________________
Date
1The record reflects that from July 1998 to July 2000, complainant
worked as the Director of Plans, Training, and Mobilization (DPTM)
which converted to Garrison Operations Manager position.