0120103505
01-27-2011
Betty Sue H. Evans, Complainant, v. Eric H. Holder, Jr., Attorney General Department of Justice (Federal Bureau of Prisons), Agency.
Betty Sue H. Evans,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120103505
Agency No. P-2006-0023
DECISION
On August 27, 2009, Complainant filed an appeal from the Agency's July
28, 2010, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., The appeal
is accepted pursuant to 29 C.F.R. � 1614.405(a). For the reasons that
follow, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant has proven that the
Agency's reason concerning why she was not selected for the Health
Systems Administration position announced under Vacancy Announcement
SCR-2005-0010 in July 2005 was a pretext discrimination on the basis of
disability (mental) and reprisal (prior Title VII activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Assistant Heath Services Administrator at the Agency's Federal
Correctional Center in Oakdale, Louisiana. On October 21, 2005, she
filed an EEO complaint in which she alleged discrimination as set forth
in the above-entitled statement, "Issue Presented."1 The complaint was
accepted for investigation, and at the conclusion thereof, the Agency
provided Complainant with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ) or a final decision from the Agency. Complainant requested
a final decision. Pursuant to Complainant's request, the Agency issued
a final decision, which found that Complainant failed to prove that the
Agency subjected her to discrimination as alleged. Complainant thereafter
initiated this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant indicated that she was appealing her non-selection
claim as it related to reprisal and disability as well as the Agency's
failure to accommodate her known disability. The Agency did not submit
contentions on appeal.
STANDARD OF REVIEW
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 Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
ANALYSIS AND FINDINGS
Non-Selection
The analysis of claims alleging disparate treatment is patterned after the
three-step scheme announced in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Once a complainant has established a prima facie
case, or assuming that the complainant does so, an agency is required
to articulate a legitimate, nondiscriminatory reason for its actions. To
ultimately prevail, the complainant must demonstrate, by a preponderance
of the evidence, that the agency's reason(s) for its action was a pretext
for discrimination, i.e., that the agency's reason was not its stated
reason and that it acted on the basis of discriminatory animus. See
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). While the
burden of production may shift, the burden of persuasion remains at
all times on Complainant. For purposes of analysis, we assume that
Complainant herein is an individual with a disability, and that she has
made out a prima facie case of reprisal and disability discrimination.
We now turn to the agency's explanation of its reason for the action
alleged to be discriminatory. The Agency stated that Complainant was
not selected for the Health Systems Administration position because the
computer-generated score assigned to her application was not above the
mathematical average of all candidates who had applied, and therefore she
was not among the "best qualified" candidates referred to the selecting
official for consideration. We find the Agency's explanation sufficient
to meet its evidentiary burden under Burdine.
In the last step of the McDonnell Douglas scheme, the ultimate burden
of proof returns to Complainant to demonstrate by preponderant evidence
that the reason given by the agency for its actions is a pretext for
discrimination. To do this, Complainant must show that the reason for
the agency's actions is not its true and was influenced by legally
impermissible criteria, in this case, discrimination on the basis of
reprisal and disability.
Complainant may establish pretext, inter alia, by showing that her
qualifications are "plainly superior" to those of Selectee. Congiusta
v. U.S. Dep't of Agriculture, EEOC Appeal No. 0120072937 (April 26, 2010)
(citing Wasser v. U.S. Dep't of Labor, EEOC Request No. 05940058 (November
2, 1995)); Bauer v. Bailor, 647 F.2d 1037, 1048 (l0th Cir. 1981).
She has not done that here. Complainant stated she was more qualified
for the job at issue because she had acted in the exact position for
approximately two years and she had more experience than the person
(Selectee) selected for the job. But the evidence of record showed that
Selectee had also served in an acting capacity in the Health Systems
Administrator job, albeit not in the exact position, and there is no
evidence other indicating Complainant's qualifications were plainly
superior to those of Selectee. Further, we note that the process by
which applications initially were ranked was automated, undercutting
Complainant's assertion of discriminatory animus in the determination
not to refer her application for further consideration. On review of
the record, we find that Complainant has not provided legal argument or
probative evidence to demonstrate that the employment action at issue
was based on her membership in those protected classes identified by her.
Her claim therefore cannot succeed.
Reasonable Accommodation
On appeal, Complainant claims that the Agency failed to provide her
with reasonable accommodation. A review of the record indicates that
Complaint broached the issue of a reasonable accommodation during
the investigation of her complaint but had not mentioned the matter
in her formal EEO complaint nor raised it before an EEO counselor.
See Complainant's October 9, 2005, Formal Complaint; see also EEO
Counselor's Report, at Personal Interviews. Our regulation found at
29 C.F.R. � 1614.105(a)(1) requires that claims of discrimination be
brought to the attention of an EEO Counselor as the first step in the
EEO process. Further, a complainant may not raise new claims for the
first time on appeal. E.g., Hubbard v. Dep't of Homeland Sec., EEOC
Appeal No. 01A40449 (Apr. 22, 2004).2
CONCLUSION
Based on a thorough review of the record, including the contentions on
appeal, we find that Complainant has not proven that the Agency's reason
for her non-selection is a pretext for discrimination or that she raised
the issue of reasonable accommodation as a matter to be made a part of
this complaint; we therefore AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 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 (S0610)
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 (Z0610)
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
January 27, 2011
Date
1 Complainant's initially alleged other bases of discrimination with
respect to her non-selection, but on appeal she specifically indicated
that she was challenging the Agency's decision on the two bases listed
here.
2 Should Complainant wish to pursue her reasonable accommodation claim,
she is advised to contact an EEO Counselor. For timeliness purposes,
the date of Complainant's initial counselor contact shall be deemed the
date on which this appeal was filed.
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0120103505
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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