0120073412_doc-_0120083812-r
02-12-2009
Betty J. Davis, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Betty J. Davis,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal Nos. 0120073412; 0120083812
Agency Nos. HS-04-TSA-001105; HS-07-TSA-001569
DECISION
On July 23, 2007, complainant filed an appeal from the agency's June 15,
2007 final decision concerning her equal employment opportunity (EEO)
complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a).
On September 3, 2008, complainant filed a separate appeal from the
agency's July 25, 2008 final decision concerning her equal employment
opportunity (EEO) complaint alleging 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 deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). The Commission exercises
its discretion to consolidate the two appeals, pursuant to complainant's
"Motion to Consolidate"1 received by the Commission on October 3, 2008.
For the following reasons, the Commission AFFIRMS both of the agency's
final decisions.
Appeal No. 0120073412
At the time of events giving rise to this complaint, complainant
worked as a Program Analysis Officer/Special Assistant, assigned to
the Office of Finance and Administration (OFA) in Arlington, Virginia.
On May 14, 2004, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African-American), color
(black/dark complexion), and age (53) when:
1. On August 11, 2003, she was not selected for Director, Budget and
Performance (DBP), advertised under Vacancy Announcement Number (VAN)
TSA-TSES-05; and
2. On January 23, 2004, she was "demoted"2 in duties and stature from
Acting Deputy Chief Financial Officer (ADCFO) to Special Assistant (SA).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Although complainant
initially requested a hearing, she subsequently withdrew her request, and
asked the agency to issue a final decision, which the agency did, pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that she was subjected to discrimination as alleged.
The FAD specifically found that the agency had articulated legitimate,
nondiscriminatory reasons for its actions, which complainant had not
shown to be pretextual.
On appeal, complainant, through counsel, contends that the agency did not
establish its "legitimate, non-discriminatory reasons" for its actions,
and that she has established that the agency's reasons were a pretext
for discrimination. Specifically, complainant argues that with regard to
the non-selection, the agency has not borne its burden because there is
no evidence of record as to why the Selecting Official chose the selectee
(White female; over age 40, but younger than complainant).3
Complainant asserts that with respect to claim (2), the "demotion", the
evidence reflects that the agency intentionally cancelled the vacancy for
the Deputy CFO position and abolished the position because complainant
was clearly best qualified. She contends that moreover, the agency then
placed her in a junior, non-supervisory position. Complainant contends
that both actions constitute discrimination against her on the basis of
her race. In its reply brief, the agency asks the Commission to affirm
the FAD.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
We note initially that we do not have the benefit of an AJ's findings
after a hearing, as complainant chose a FAD instead, and therefore,
we can only evaluate the facts based on the weight of the evidence
presented to us. Here, assuming complainant can establish a prima facie
case of discrimination on the alleged bases as to both issues, we find
(contrary to complainant's assertion) that the agency has met its burden
of articulating legitimate, nondiscriminatory reasons for its actions.
As to the non-selection, the agency has articulated the following: The
Selecting Official first stated that he did not select complainant because
she was not referred to him as a "Best Qualified" candidate. He stated
that he relied on the Office of Human Resources' former Executive
Resources Specialist (ERS) to coordinate the recruitment process.
He stated that the ERS coordinated the selection of three rating panel
members - an SES member employed at the Office of Personnel Management;
an SES member and former Deputy Budget Director at the Department of
Justice; and an SES member and former Chief Financial Officer.
The panel ranked the 33 applicants based on four Professional Technical
Qualifications (PTQs). The panel members unanimously rated the selectee
with the highest rating (4) for all four PTQs in their individual ratings.
The panel members unanimously rated complainant four points on PTQ 1
concerning "budget-related knowledge." The panel members, however, did
not rate complainant identically on PTQ # 2, 3, and 4 in their individual
ratings, and due to the difference in points assigned on PTQs # 3 and 4
(two points difference between panel members), it was necessary for the
panel members to discuss the disparity in their individual ratings in
order to attempt to reach a consensus for complainant's final ratings.
After the panel members discussed their rationale for the ratings
assigned to complainant on PTQs # 3 and 4, one panel member increased
PTQ # 3 from 2 to 3; one panel member decreased PTQ # 4 from 4 to 3;
and one panel member decreased PTQ # 4 from 3 to 2.
The ERS prepared a Summary Rating & Ranking Table for the 33 candidates,
averaging the final ratings assigned by the panel members. The ERS in
turn, prepared a Selection Certificate for the Selecting Official,
identifying five "best qualified" candidates for consideration.
The ERS did not identify complainant, nor 27 other candidates, as "Best
Qualified" candidates for the position. Upon receiving the Selection
Certificate from Human Resources listing 5 "Best Qualified Candidates"
(which did not include complainant), the Selecting Official relied on
two other members of his staff, the former Chief Staff Officer and the
former Deputy Director Budget and Performance to assist in interviewing
the five Best Qualified Candidates and one Non-Compete (SES) Applicant.
After the interviews were completed, the Selecting Official consulted
with the two other members of the interviewing panel and they unanimously
agreed that the selectee was the "best fit." In his written justification
for his selection of the selectee, the Selecting Official states as
follows: "[The selectee] is the best-qualified candidate based on
her outstanding leadership, managerial, and organizational skills.
She has worked in the budget field in the federal government in
the past 20 years and will bring with her a wealth of experience.
At the present time, [she] has management responsibility over the
FBI's budget and is responsible for advising executive leadership
on the full range of budgetary issues affecting a large and complex
federal government organization. This experience in directing the
complex budget operations of a major Federal agency separates her from
the other candidates. In addition, she has demonstrated experience
in building and maintaining a staff that can formulate, justify, and
administer an agency-wide budget in a high pressure environment, similar
to TSA's. Also, she has extensive experience and a good reputation in
working with Department of Justice, OMB budget staff, and congressional
appropriations subcommittee staffs. She is by far the superior candidate
and my first choice." Complainant has not persuaded the Commission,
by a preponderance of the evidence, that the agency's actions in this
selection process were tainted by discriminatory animus.4
The agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may
be able to establish pretext with a showing that her qualifications were
plainly superior to those of the selectee. Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). Here, complainant simply has not made this
showing in this case.
As to issue (2) concerning the "demotion", the agency asserts that
complainant did not sustain a diminution of duties when she was
reassigned from her Acting Deputy CFO role back to her position of
record as Program Analysis Officer. The agency further explains that the
former AAFA/CFO proposed that the TSES Deputy CAO position be abolished
and the position be used elsewhere in CAO to help address the shortfall
in CAO staffing. Management explains that complainant was reassigned
because her position was eliminated in order to conserve resources and
flatten the organization. Having carefully reviewed this record and
complainant's arguments, we are not persuaded by a preponderance of the
evidence that the agency's reasons for its actions are, more likely than
not, mere pretext for discriminatory animus. We find no discrimination
as to both issues in Appeal No. 0120073412.
Appeal No. 0120083812
On September 3, 2008, complainant filed an EEO complaint alleging
that she was discriminated against on the bases of race (Black), color
(black/dark complexion), and reprisal for prior EEO activity [arising
under Title VII] when, on March 29, 2007, she learned that she was not
selected for the position of Director, Budget and Performance (DBP)
advertised under VAN No. TSA-TSES-U6-37.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant
initially requested a hearing, however, she withdrew this request,
and asked for a final decision which the agency issued on July 25,
2008.
The FAD found that there was no need to conduct a prima facie analysis
since the agency had articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the Selecting Official explained that
complainant was not selected because the interview panel unanimously
recommended another candidate (White female, no prior EEO activity)
based on her experience, breadth of expertise, demonstrated results,
knowledge of the Federal budget process, outreach and instruction
of subordinate components regarding internal budget processes,
and demonstrated ability to work within and across organizations.
In response to complainant's arguments in attempting to establish pretext,
the Selecting Official indicated that although complainant was qualified
and deserved consideration, she was not the best qualified candidate.
Specifically, the Selecting Official stated that complainant did not
match the selectee's record of success in all of the required tasks.
The FAD noted that although complainant had more years of budget and
financial management experience, the record does not demonstrate that
complainant's qualifications were plainly superior to those of the
selectee. The FAD found that there was no evidence of pretext.
On appeal, complainant contends that during the EEO investigation,
when the selecting official asked for reasons he selected the selectee,
he copied verbatim the written statement he had provided at the time
of the selection. When another panel member (the Chief of General Law)
was asked for her reason for recommending the selectee, she too copied
verbatim the written statement of the selecting official. Complainant
notes that this panel member also noted that complainant's background
and responses were not as strong. Complainant also questions whether
there was a subject matter expert on the panel. Complainant also
contends that she did not have the kind of recent experience that the
selectee had because she had not been given the same opportunities.
Complainant also disputes some of the officials' assertions about the
selectee's accomplishments and suggests that in fact, the selectee could
not handle some aspects of the job. Complainant contends that she has
in fact established pretext when management chose the selectee and not
complainant, for the second time.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Here, the agency has articulated legitimate, nondiscriminatory reasons
for its actions. Although complainant presents numerous arguments
about what she believes are deficiencies in the selectee's performance
and abilities while acting in the position in question, we are not
persuaded that complainant's qualifications render her "plainly
superior" to the selectee. The record also contains no persuasive
evidence that management's alleged discriminatory or retaliatory animus
toward complainant most likely motivated the selection decision at hand.
Again, we note that we do not have the benefit of an AJ's findings after
a hearing, as complainant withdrew her hearing request and chose a FAD
instead, and therefore, we can only evaluate the facts based on the
weight of the evidence presented to us.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM both FADs.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 12, 2009
Date
1 In her Motion complainant notes that the non-selections in each
complaint were for the same position which was advertised and then
re-advertised.
2 The record indicates that complainant suffered no loss of salary or
pay as a consequence of this action.
3 The record shows that the selectee only ended up serving in the
position briefly. Upon her departure, another White female (the same
selectee as in Appeal No. 0120083812), was non-competitively placed in
the position on a temporary basis. The position was advertised again
in late 2004, and although complainant again applied, the White female
who had been Acting on a temporary basis was selected. Subsequently,
the selectee's SES certification package was rejected by OPM because it
was not submitted within 90 days. The selectee was however, permitted
to serve on an Acting basis for 2 1/2 years. The position was then
advertised again, and complainant's non-selection at that point in time
is the subject of Appeal No. 0120083812.
4 We note that complainant asserts that the Selecting Official had told
her that no one "owed" her the Deputy CFO position, and that "people think
(she has) an attitude problem." Complainant states that in response,
she indicated that it seemed that only Black people are accused of having
an attitude problem, and she also expressed her concern that there were
almost no minority professional and managerial employees in the division.
Assuming this exchange occurred as complainant asserts, we do not find
this to be persuasive evidence that race-based discriminatory animus
motivated the agency's actions at hand.
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0120073412
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120073412; 0120083812