01A40225
09-17-2004
Brenda Hester, Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency.
Brenda Hester v. Equal Employment Opportunity Commission,
01A40225
September 17, 2004
.
Brenda Hester,
Complainant,
v.
Cari M. Dominguez,
Chair,
Equal Employment Opportunity Commission,
Agency.
Appeal No. 01A40225<1>
Agency No. & Hearing No. 0-010056-PA
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency order
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 order.
BACKGROUND
During the period in question, complainant was employed as a GS-12
Investigator in the agency's Philadelphia District Office (PHDO).
The record reveals that complainant began her employment as an
Investigator with PHDO in May 1974.
In February 2001, the agency announced a merit promotion vacancy for
a GS-12/13 Alternative Dispute Resolution (ADR) Mediator in PHDO.
Employees of the EEOC and other Federal agencies as well as persons
who were eligible for reinstatement could apply for the vacancy.
The announcement indicated that the agency would evaluate each applicant
on his/her knowledge of laws enforced by the EEOC and ADR policies,
ability to analyze and appropriately address issues in a dispute,
knowledge of mediation techniques, ability to effectively make oral and
written presentations, and ability to effectively handle tense situations.
In addition, the announcement listed a need for increased knowledge and
skills for the GS-13 level, i.e., expert knowledge of laws enforced by
the EEOC and ADR policies and demonstrated experience applying mediation
techniques.
In early March 2001, complainant applied for the ADR Mediator
vacancy at the GS-13 level, under the merit promotion announcement.
In her application, complainant indicated that she has an exceptional
understanding of EEOC policies and laws due to her 27-year tenure with the
Commission and has utilized mediation techniques as an EEOC Investigator
and as a member of various partnership councils. Subsequently, later that
March, the Office of Personnel Management (OPM) announced the ADR Mediator
vacancy and opened it to the public. The OPM announcement was displayed
on the Federal USAJOBS website. In addition, an EEOC Human Resources
Specialist (HR1) stated that he displayed the OPM announcement outside
of his work area in the PHDO, as was common practice. OPM forwarded
a certificate of eligibles containing nine candidates to the EEOC.
HR1 stated that he believed that he forwarded the merit promotion
certificate and the OPM certificate to the selecting official (SO)
and reviewing official (RO).
The agency selected the top-rated candidate on the OPM certificate
(selectee), who was a 49-year old Caucasian female, for the Mediator
position. The agency did not select complainant. Believing she
was a victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint alleging that the agency
discriminated against her on the bases of race (African-American), sex
(female), age (54 years of age), and reprisal for prior EEO activity in
failing to select her.
SO stated that he made his selection from an OPM certificate of eligibles
as it was the only one that he was provided and RO stated that he
approved SO's selection. SO stated that he decided not to conduct
interviews for the position and he selected the top-rated candidate on
the OPM certificate because she possessed the qualifications he sought.
Initially, the District Director of PHDO (DD) stated that she did not
have any involvement with or knowledge of the circumstances surrounding
the selection of the ADR Mediator. However, DD later amended her
statement after reviewing an email she sent to SO on April 11, 2001.
In the e-mail, DD instructed SO to make a selection based on the OPM
certificate only without opening the merit promotion certificate and to
make the selection as soon possible. DD explained that the intent of her
initial statement was that she did not review the applications, interview
the candidates nor make the selection for the ADR Mediator position.
Further, DD explained that she wanted SO to use the OPM certificate
because she thought it would provide a wider pool of well-qualified
candidates and that she wanted the selection made as quickly as possible
as approval for filling the vacancy could be rescinded. A second Human
Resources Specialist (HR2) stated that she informed DD that, she could
use the OPM certificate solely, but she must apply the �rule of three.�
HR2 explained that a selection would have to be made from the top three
candidates on the OPM certificate.
The record reveals that, during the period in question, the selectee was
an attorney who had several months of experience as an ADR Consultant
and two years of experience as a contract mediator for private sector
EEO cases in PHDO. In addition, selectee held certificates for EEO
Investigator training and ADR training as well as membership in ADR
professional organizations.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before a contract Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
Complainant requested a hearing.
After a hearing, the AJ issued a decision finding no discrimination.
The AJ found that the agency's sole use of the OPM certificate was
appropriate and that complainant failed to show that she was unable
to apply under the OPM announcement also. In addition, the AJ found
that DD clarified her initial statement to mean that she was not the
selecting official for the Mediator position. The agency issued a
final order fully implementing the AJ's finding of no discrimination.
Specifically, the agency found that complainant established a prima
facie case of discrimination based on race, age, and reprisal but
failed to do so based on sex. The agency stated that the selectee had
prior mediation experience, a certificate for mediation training, and
was director of a local conflict resolution association. The agency
noted that complainant did not have any direct mediation training. The
agency concluded that complainant failed to show that the legitimate,
nondiscriminatory reasons it articulated for its action were pretextual.
On appeal, complainant contends that she was highly qualified for
the Mediator position; there are credibility issues regarding RO's
statement that SO was provided the merit promotion certificate and the OPM
certificate and DD's statement that she was not involved in the selection
process for the ADR Mediator position at issue; DD did not want the merit
promotion certificate used because she was aware that complainant applied
under that announcement; and the agency failed to select her for various
Mediator vacancies. The agency requests that we affirm its Final Order..
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the complainant must
then prove that the legitimate, nondiscriminatory reason articulated by
the agency is merely pretext for its discrimination. McDonnell Douglas,
Because the agency articulated a legitimate, nondiscriminatory reason for
its action, i.e., it considered candidates from the OPM certificate of
eligibles only and selected the top-rated candidate on that certificate,
we may proceed directly to determining whether complainant satisfied her
burden for showing pretext. Haas v. Department of Commerce, EEOC Request
No. 05970837 (July 7, 1999)(citing U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this in one
of two ways, 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. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
Complainant stated that she was highly qualified for the Mediator
position; there are credibility issues, particularly regarding
the statements of DD and RO; DD did not want the merit promotion
certificate used because she was aware that complainant applied under
that announcement; and the agency failed to select her for various
Mediator vacancies.
We find that the substantial evidence of record supports the AJ's
findings. Complainant failed to show that she was the best qualified
candidate for the vacancy. The record shows that complainant had
experience using dispute resolution methods as an investigator and as
a negotiator for various partnership councils, but did not have direct,
formal mediation experience and training. Whereas, selectee had several
months of experience as an ADR Consultant, two years of experience as
a contract mediator for private sector EEO cases in PHDO, certificates
for EEO Investigator training and ADR training, and membership in ADR
professional organizations. As to the credibility of a statement by
DD that she did not participate in the selection process at issue,
following a hearing, the AJ found that DD explained the intent of her
statement � she was not a participant in the actual process of selecting
the ADR Mediator. Regarding the credibility of a statement by RO that SO
was provided both the merit and the OPM certificates, we find that RO's
statement that he sent both certificates to SO and SO's statement that
he received the OPM certificate only are not necessarily inconsistent
and do not show an intent to deceive. Further, we note that HR1 stated
also that he believed that he sent both certificates to SO. In addition,
the AJ found that complainant could have applied under both the merit
and the OPM vacancy announcements, but did not do so, although she was
aware of the vacancy posting practices of PHDO. Lastly, the GS-13 ADR
Mediator position filled at PHDO in early 2001 is the only non-selection
at issue in the instant complaint. Assuming that complainant cited her
additional non-selections as background evidence, she failed to show that
the non-selection at issue herein was based upon discriminatory motives.
Based on the foregoing, the complainant has failed to prove discrimination
based on race, sex, age or reprisal. 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 Final Order.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
September 17, 2004
__________________
Date
1In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from
those offices charged with the in-house processing and resolution of
discrimination complaints. For the purpose of this decision, the term
"Commission" or �EEOC" is used when referring to the adjudicatory
authority and the term "agency" is used when referring to the respondent
party in this action. The Chair has recused herself from participation
in this decision.