Carolyn McCray-Herren Appellant,v.Louis Caldera Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 3, 1999
01973810 (E.E.O.C. Sep. 3, 1999)

01973810

09-03-1999

Carolyn McCray-Herren Appellant, v. Louis Caldera Secretary, Department of the Army, Agency.


Carolyn McCray-Herren v. Department of the Army

01973810

September 3, 1999

Carolyn McCray-Herren )

Appellant, )

) Appeal No. 01973810

v. ) Agency No. DA-94-04-0109

) Hearing No. 270-94-9119X

Louis Caldera )

Secretary, )

Department of the Army, )

Agency. )

_________________________)

DECISION

On April 8, 1997, Carolyn McCray-Herren (appellant) timely appealed the

final decision of the United States Department of the Army (agency),

which was received by appellant on March 17, 1997, concluding she had not

been discriminated against in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. �2000e et seq. In her complaint,

appellant alleges that she was discriminated against on the bases of race

(Black) and color (black) when she was not selected for the position of

Lead Education Technician GS-1702-05 in the Child Development Center in

August, 1993. The appeal is accepted by the Commission in accordance

with EEOC Order No. 960.001.

The record reflects the following: During all times relevant herein,

appellant was employed with the agency as a Program Assistant. On April

7, 1993, the agency announced a vacancy in the position of Lead Education

Technician GS-1702-05. The duties of the position involved conducting and

assisting with child care activities. Appellant applied for the position

on April 16, 1993. On May 12, 1993, a referral and selection register

was sent to the selecting official. No applicant was selected. Also on

May 12, 1993, a separate referral and selection register was sent to

the selecting official who selected three out of five referrals. Two of

the selectees (C1 and C2) were white and one (C3) was black. However,

these selections were later voided because of priority placement rules.

On June 22, 1993, another referral and selection register was sent to

the selecting official. According to the instructions on this referral

certificate, the selecting official could not decline to select a spouse

preference eligible in favor or a non-spouse preference eligible.

On June 24, 1993, the selecting official (Black) (S1) chose three of

the referrals, C4, C5, and C6, who were all spouse preference eligibles

and Black. Later a forth vacancy developed and S1 used the June 22, 1993

selection register which contained the names of the unselected applicants.

S1 selected C7 (white).

On October 1, 1993, appellant filed a formal EEO complaint with the

agency, alleging that the agency had discriminated against her as

referenced above. The agency accepted the complaint and conducted

an investigation. At the conclusion of the investigation, appellant

requested an administrative hearing before an Equal Employment Opportunity

Commission (EEOC) administrative judge (AJ). A hearing was conducted

on or about September 26, 1996. Thereafter, the AJ issued a recommended

decision finding no discrimination.

The AJ determined that appellant established a prima facie case of

discrimination with respect to the fourth vacancy since C7 was white

and was not a spouse preference eligible applicant. While appellant

testified that S1 stated that she was not going to hire blacks any

more, the AJ assessed the evidence and credibility of the witnesses and

determined that the statement was not made by S1. The AJ specifically

noted that the person who allegedly heard the statement was not called

as a witness by appellant.

The AJ also determined that the agency articulated a legitimate,

non-discriminatory reason for its employment action. Specifically,

S1 testified that when the fourth vacancy developed she requested

permission from Personnel to use the same referral list to fill the

fourth vacancy. Personnel granted S1's request. S1 affirmed that she

used the results from the original selection process which had narrowed

the possible selectees to three candidates. S1 explained that because C7

was at the top of the list of those three candidates, she was selected.

The review panel (one black and one white) confirmed that they ranked

C7 over appellant because C7 had more college credits in early childhood

education than appellant.

The AJ found that appellant failed to prove, by a preponderance of the

evidence, pretext or that the agency was motivated by discriminatory

animus. The appellant argued: (1) that she had more experience than C7;

(2) that S1 made a statement about not wanting to hire anymore blacks;

(3) that there were irregularities in the selection process; and (4)

that C7 threatened to complain if she was not selected. The record

reveals that C7 and appellant both were well qualified for the position.

They had similar performance ratings, and certificates of training.

Appellant had 6 semester hours of related college education and C7 had

twenty-six semester hours of related college education. Appellant had

approximately ten years of relevant pre-agency experience and C7

two years of relevant pre-agency experience. Both C7 and appellant

received a score of 98 on their merit staffing ratings for the vacancy

announcement. According to the AJ, the record did not establish that

appellant was more qualified than C7. While appellant contended that

S1 made a comment about not wanting to hire blacks, the AJ found that

the preponderance of the evidence did not establish that such statement

was made. Appellant also contended that her name was misspelled on one

of the referral certificates. However, the record indicates that despite

the mistake, appellant was, nevertheless, considered for the vacancies.

Appellant also contended that S1 should have restarted the selection

process instead of selecting C7 from an existing certificate. Both S1

and a personnel officer testified that since the existing certificate

was less than 120 day old, it was permissible to use the certificate.

Lastly, the appellant contended that C7, a union representative,

threatened to file a grievance if she was not selected. The AJ noted

that there was nothing in the record to support appellant's allegation.

However, assuming this allegation was true, it was not probative of

race and color discrimination. Considering the record as a whole,

the AJ determined that appellant failed to prove pretext, or that the

agency was motivated by discriminatory animus.

On March 12, 1997, the agency adopted the findings and conclusions of

the AJ and issued a final decision finding no discrimination. It is

from this decision that appellant now appeals.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission finds

that the AJ's recommended decision properly analyzed appellant's complaint

as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56

(1981). The Commission concludes that, in all material respects, the AJ

accurately set forth the relevant facts and properly analyzed the case

using the appropriate regulations, policies, and laws. Based on the

evidence of record, the Commission discerns no basis to disturb the AJ's

findings of no discrimination. As appellant has offered no additional

evidence in support of her claim on appeal, we discern no legal basis

to reverse the AJ's finding of no discrimination. Accordingly, it is

the decision of the Equal Employment Opportunity Commission to AFFIRM

the agency's final decision finding no discrimination.

STATEMENT OF RIGHTS -- ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

9/3/99

_______________ _______________________________

DATE Carlton Hadden, Acting Director

Office of Federal Operations