01A11632
08-26-2002
Amelia M. Canino, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Amelia M. Canino v. Department of the Navy
01A11632
August 26, 2002
.
Amelia M. Canino,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A11632
Agency No. DON 98-00102-004
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. For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Management Analyst GS-11 at the agency's Portsmouth Naval Shipyard,
Management Systems Support Division facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on December 26, 1997,
alleging that she was discriminated against on the basis of reprisal
for prior EEO activity when the agency declined to fill a vacant GS-12
Management Analyst position for which the complainant was qualified to
be promoted to in October 1997. She essentially claims that the agency
thwarted her efforts to be promoted to a GS-12.<1>
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.
In its FAD, the agency concluded that complainant stated a prima facie
case of discrimination based on reprisal because she had filed two prior
EEO complaints, one of which was pending at the time of the selection
and other actions at issue. The selection official (S) admitted he was
aware of complainant's prior EEO activity as he was named the responsible
management official in both of them. Based on these facts, the agency
concluded that an inference of reprisal existed.
On appeal, complainant makes no additional comments. The agency in
its opposition to the appeal, addressed a statement<2> made by S that
complainant claimed indicated his motive to take reprisal against her.
The agency argued that even if the statement was made, S also stated
his support for complainant's right to report alleged discrimination
and that therefore, it was not discriminatory in nature. In addition,
the agency argued that S consistently selected candidates with the top
scores calculated by a selection panel. The agency contends that even
if S had made another selection, complainant was not ranked high enough
to be the next selectee. Based on these arguments, the agency requests
that we affirm its final decision.
ANALYSIS AND FINDINGS
As a preliminary matter, we find that S's statement as described by
complainant is not direct evidence of discrimination and has not been
shown to be linked to the actions at issue. Therefore, we apply the
standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases).
The Commission finds that although complainant properly established a
prima facie case of discrimination based on her prior EEO activity,
we also find that complainant failed to present evidence that more
likely than not, the agency's articulated reasons for its actions were
a pretext for discrimination. In reaching this conclusion, we note
that the evidence demonstrates that the agency advertised a position
for a Management Analyst in May 1997. Complainant applied for the
position and made the list of eligibles which contained the names
of 19 candidates including complainant. Three others were listed as
reassignment eligibles. A selection panel was formed which scored and
ranked each candidate, ranking complainant eighth out of 12 on the list
on which she appeared. The selectees were both ranked first on each list
of eligibles. Thus, the agency's contention that S simply selected the
highest ranked candidates was supported by the evidence. Although one
panel member acknowledged that she knew about complainant's protected
activity, complainant failed to demonstrate that the five member panel
was motivated by reprisal as a group in scoring her application and in
ranking her eighth on the list of eligibles.
Complainant's claim that S purposely declined to fill an additional
vacancy in October 1997 in order to further thwart her career must
also fail. The agency contends that its vacancy announcement permitted
additional selections from the list of eligibles but even if S had
decided to fill another vacancy, complainant was not ranked high enough
to be the next candidate selected based on his record of selecting the
highest ranked candidate. Complainant failed to demonstrate that this
explanation was not worthy of belief. In addition, S stated that he
and other managers decided to hire two lower graded candidates from
another register and not an additional GS-12 Management Analyst based
on projected needs of the office. Complainant was unable to refute S's
contention or demonstrate that it was 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 (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
August 26, 2002
__________________
Date
1In the Commission's prior decision (Canino
v. Department of Navy EEOC No. 01982555 (7/14/99)) we remanded this
issue for investigation. Complainant's other claims, including her
non-selection for a GS-12 Management Analyst in 1997 were ruled to be
background evidence of the agency's alleged failure to promote her to
a GS-12.
2Complainant reported and the agency does not deny that S stated �it's
a tragedy to use EEO as a vehicle to process such a claim. If RIFs or
merit promotion are unfair, let us deal with the process and not try to
use EEO to express frustration over potential loss of a job.�