01a03163
11-21-2000
Vernetta Foster, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Vernetta Foster v. Department of the Navy
01A03163
November 21, 2000
.
Vernetta Foster,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03163
Agency No. DON 4-63043-010
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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the bases of race (Black), sex (female) and reprisal (prior
EEO activity) when on March 4, 1994:
(1) Complainant was not selected for the position of Child Development
Program Administrator, GS-1701-09. Even though the application went
through the system and came out among the highly qualified, complainant
never received equal consideration in the merit staffing program on
the local level;
Complainant was not allowed to perform duties as described in her job
description;
Complainant alleged reprisal in that she became aware that the Child
Development Program Administrator position changed from the 1702 series
to the 1701 series, which is a more professional level and to which
she was presently assigned. Complainant alleged this action extended
the area of consideration to open competitive vacancy;
Complainant alleged reprisal because she was not given an equal
opportunity. She alleged that the Selecting Official (SO) did not
objectively consider her as evidenced by the fact that he said he would
hire from outside DoD when filling the position of Child Development
Program Administrator, GS-1701-09; and
Complainant went to management to discuss her not being supported as
the trainer and being subjected to purportedly discriminatory statements
by the selecting official, his assistant, and the Child Care supervisor.
The record reveals that during the relevant time, complainant was employed
as a Child Development Training and Curriculum Specialist, GS-1701-07,
at the agency's Naval Air Station, Meridian, Mississippi. Believing she
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal complaint on May 23, 1994. 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. Complainant requested that the
agency issue a final decision. In its FAD, the agency concluded that
complainant failed to prove by a preponderance of the evidence that she
was discriminated against in the matters alleged.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
alleging discrimination is a three-step process. Complainant has the
initial burden of establishing a prima facie case of discrimination. If
complainant meets this burden, the burden shifts to the agency to
articulate some legitimate, nondiscriminatory reason for its challenged
action. Complainant must then prove, by a preponderance of the evidence,
that the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973).
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that she engaged in
protected activity; 2) that the alleged discriminating official was aware
of the protected activity; 3) that she was disadvantaged by an action of
the agency contemporaneously with or subsequent to such participation;
and 4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc. ,425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F.2d 222(1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985);
Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th
Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
This established order of analysis, 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 articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The agency explained that
Supervisor 2 reviewed the applications for the position at issue that
were submitted with the OPM certificate and gave his comments on the
candidates' qualifications to Supervisor 3, who was the selecting
official (SO). Supervisor 2 made no recommendations on the selection.
The SO based his selection on his review of the OPM certificate and the
applications, discussions with the Bureau of Naval Personnel (BUPERS)
in Washington, D.C., and discussions with the Commanding Officer.
The SO did not conduct any interviews. The SO indicated that BUPERS
did not give favorable consideration to complainant or one of the other
candidates (female, race unknown), but did indicate that the selectee
had a strong background in training and curriculum development and was
highly qualified.
The burden returns to complainant to demonstrate that the agency's
reason was a pretext for discrimination, that is, that the agency
was more likely motivated by discriminatory reasons. Burdine, 450
U.S. at 253. Complainant can do this either directly, by showing that a
discriminatory reason more likely motivated the agency, or indirectly by
showing that the agency's proffered explanation is unworthy of credence.
Burdine, 450 U.S. at 256. In a non-selection case,
pretext may be demonstrated in a number of ways, including a showing
that a complainant's qualifications are plainly superior to those of
the selectee. Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981).
In an attempt to show pretext, complainant claims that her non-selection
for the position was the result of a pattern of discriminatory and/or
retaliatory conduct by management that effected the terms and conditions
of her employment. Complainant argues that this is evidenced by the
fact that she was not named Acting CDC Director when the incumbent
was reassigned despite the terms a settlement agreement in a prior
EEO complaint that enabled her assume that duty;<2> that she was more
qualified than the person named Acting Director; that she had been set up
to fail from the beginning, as evidenced by the CDC Director's efforts
to block anything that would have reflected complainant's success;
and the SO's acceptance of the Acting CDC Director's �fabrications.�
Complainant failed to show pretext by the fact that she was not named
Acting CDC Director despite the terms a settlement agreement of a prior
EEO complaint. Complainant rendered that settlement agreement moot
when she reopened the complaint on May 7, 1993, alleging that management
failed to implement all of the agreements provisions.
Complainant also failed to prove that her qualifications were plainly
superior to that of the selectee. Supervisor 3, the SO, considered
complainant's application along with the others. The SO indicated that
he wanted someone with a fresh perspective on interpersonal relationships
within the department and contacted BUPERS for their input on the two
non-local candidates. When BUPERS gave a negative report on one of the
candidates, the selection came down to the complainant and the selectee.
The SO acknowledged that he wanted to hire someone outside of the command
because of the internal conflicts at the CDC, noting that the complainant
was very argumentative and contentious in dealing with individuals and
that she did not accept direction well.
Complainant also failed to prove that she had been �set up to fail� by
the former CDC Director nor did she prove that the Acting CDC Director
made �fabrications� about complainant to the SO. The consensus among the
complainant's witnesses was that the former CDC Director's management
style created problems with the staff and the parents of the children
at the CDC. They observed that the former CDC Director and complainant
disagreed and argued over the way things were to be done. One witness
indicated that the former Director treated everyone the same and that
the complainant was aggressive in wanting things done her way and
overly sensitive if her demands were not met. The record indicates
that there was a confrontational relationship between complainant and
the Acting CDC Director. The record shows that the conflict centered
on the Acting CDC Director's alleged reluctance to make changes and
complainant's refusal to agree with anything unless it was her idea.
Because of these conflicts, the SO transferred both the complainant and
the Acting CDC Director outside of the CDC. Supervisor 1 affirmed that
complainant's conflicts with the Acting CDC Director was negatively
impacting on the welfare of the children at the agency.
Both Supervisors 1 and 2 pointed out that the change in job series for
the Child Development Center Director position from 1702 to 1701 was
made by BUPERS and not at the local activity level. There is no evidence
that the change in job series was done in retaliation for complainant's
prior EEO activity.
While acknowledging that he said he would hire from outside DoD when
filling the position in question, the SO stated that he did not mean
that persons within the system would not be objectively considered for
the position. He made it clear that complainant was considered for
the position but was not selected because of the conflicts she had with
management, not because of the race, sex, or reprisal discrimination.
Finally, complainant alleged that she was subjected to discriminatory
comments when she went to management to discuss not being supported
as the trainer. She alleged that the SO stated, �You are mad because
you were not hired as the Director;� that Supervisor 2 asked, �How many
complaints have you filed� and �I have a record of you going to EEO;� and
that Supervisor 1 said, �I'm sorry I wasn't more supportive.� The SO
did not recall making that statement or any similar statement in which
he could have made a statement in that context. He stated that he did
ask complainant why they were meeting and believed it was because she
had not been selected as the CDC Director. Supervisor 2 acknowledged
making a statement to complainant that she was not on the job on many
occasions when she was needed but was at the EEO Office without having
notified her supervisor. He maintained that complainant took his
statement out of context. Supervisor 1 acknowledged that he probably
told complainant he was sorry he was not more supportive. He maintained,
however, that he felt he had supported her but probably, unknowingly,
had not communicated enough with her.
In light of the above, the Commission finds that complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. Therefore,
after a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 21, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record shows that complainant and management signed a settlement
agreement in a prior EEO complaint on February 3, 1993, that provided
in part that complainant would have the opportunity to participate in
daily activities and decisions that would prepare her to assume the CDC
Director's duties in the Director's absence. However, when the incumbent
CDC Director was reassigned, another individual was named Acting Director.
Supervisor 3 acknowledged that he did not consider placing complainant as
the Acting Director because she had problems accepting directions from her
supervisor and basically wanted things her way. Supervisor 3 described
the Acting Director as dedicated, well-organized, and professional,
and noted that she
had an outstanding reputation throughout the Navy's child development
program system for one of the best child care programs in the country.