01971299
12-14-1999
Debbie L. Walker, Complainant, William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Debbie L. Walker, )
Complainant, )
)
)
) Appeal No. 01971299
William S. Cohen, ) Agency Nos. DCNW33-010
Secretary, ) DCNW36-001
Department of Defense, )
(Defense Commissary Agency), ) Hearing Nos. 370-96-X2115
Agency. ) 370-96-X2116
____________________________________)
DECISION
The Commission finds that the agency's October 17, 1996 final decision
finding that the agency did not discriminate against complainant based
on race or reprisal was proper.<1>
Complainant filed a formal EEO complaint (DCNW33-010) on February 9, 1995,
alleging that she was discriminated against based on race (Black), and
reprisal (prior EEO activity) when on December 21, 1994, she was notified
that she was not selected for the position of Lead Cash Clerk, GS-530-05,
announcement number S-94-550. Complainant filed a second formal EEO
complaint (DCNW36-001), on June 6, 1995, alleging discrimination based
on race (Black) and reprisal (prior EEO activity) when on February 21,
1995, she was not selected for the position of Lead Sales Store Checker,
GS-2091-4, announcement number S-94-632. The agency subsequently
consolidated these two complaints and conducted an investigation.
Complainant requested a hearing before an Administrative Judge (AJ)
and a hearing was held on August 26, 1996.
In complaint No. DCNW33-010, complainant alleges that she was not
selected for the position of Lead Cash Clerk at Yongsan Commissary
for discriminatory reasons. For the position, a selection panel of
three was appointed to screen the candidates. The panel consisted of
an Asian-Korean, Caucasian, and an African-American employee. Of the
best qualified candidates, three were chosen. The selectee ranked
first with 99 points, the complainant ranked second with 80 points and
the third candidate had 75 points. Each member of the selection panel
testified at the hearing that they rated the applicants independently,
without discussion among each other, and each chose the selectee as the
best qualified.
In complaint No. DCNW36-001, complainant alleges that she was not
selected for the position of Lead Sales Store Checker at the Hannam
Village Commissary for discriminatory reasons. For this position,
the Hannam Village Commissary Officer was the selecting official and
of the eight candidates, he interviewed six, including complainant.
The complainant and the selectee were the top two candidates, and both
worked together at Camp Casey Commissary. The selecting official called
the supervisors at Camp Casey and asked for references for both employees.
The supervisors recommended selectee over complainant. At the same time,
the selecting official filled another position at the Hannam Village
Commissary with an African-American male.
The AJ made a finding of no discrimination in his recommended decision.
The AJ found that in complaint No. DCNW33-010 there was no evidence of
discrimination. In complaint No. DCNW36-001 the AJ found that the only
evidence of discrimination was a comment made by one of complainant's
supervisors to a co-worker who testified that in December 1994, the
supervisor said that he was having a lot of trouble in Korea now due to
the �Negroes� coming together. The selecting official for this position
had called two of complainant's supervisors for a reference, however,
the selecting official did not identify who these supervisors were.
Therefore, the AJ considered and found that the testimony of the co-worker
was insufficient to support a finding of discrimination.
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant, to
initially establish that there is some merit to his or her allegation.
In order to accomplish this burden, complainant must establish a prima
facie case of discrimination. See McDonnel Douglas Corp v. Green,
411 U.S. 792, 802 (1973). If complainant meets this initial burden,
the burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its challenged action. See Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Complainant must
then prove, by a preponderance of the evidence, that the legitimate
reason articulated by the agency was not its true reason, but was a
pretext for discrimination. See St. Mary's Honor Center v. Hicks,
113 S. Ct. 2642, 2749 (1993).
In the instant matter, the Commission finds that complainant established a
prima facie case of race discrimination: she is a member of a protected
group; the agency did not select her for the Lead Cash Clerk or the Lead
Sales Store Checker position even though the agency deemed her qualified
for it; and the agency selected another employee who does not belong to
the same group as complainant.
Now that complainant has met her burden of establishing a prima facie
case, the agency must articulate a legitimate, nondiscriminatory reason
for its actions. See Burdine, supra at 450 U.S. 253. We find that the
agency has satisfied its burden. In complaint No. DCNW33-010, the agency
asserted that it chose the selectee because her qualifications were better
than complainant's. In complaint No. DCNW36-001, the agency asserted that
the selecting official made his selection based on the selectee's better
qualifications as well as a reference from complainant and the selectee's
former supervisors. Therefore, in both complaints the agency was able
to articulate a legitimate nondiscriminatory reason for its actions.
At this point, complainant bears the burden of establishing that the
agency's articulated reasons are a pretext for discrimination. She can
accomplish this by showing that a discriminatory reason motivated
the agency. See St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742
(1993). In complaint No. DCNW33-010 the complainant alleged that
the supervisors in the Yongsan Commissary selected an Asian selectee
rather than complainant because the supervisors are attempting to have
only Asians or Whites as part of their staff. Furthermore, complainant
alleges in the record that she was subjected to harassment due to black
market activities going on in the Commissary. However, such generalized
and vague allegations are not sufficient to show the agency discriminated
against the complainant. Moreover, the selecting members all made their
selections independently. Complainant did not show that she was better
qualified for the position than the selectee.
In complaint No. DCNW36-001 the complainant alleged, and had a witness
testify to in the hearing, that one of the supervisors contacted by the
selecting official had made discriminatory remarks towards complainant and
her protected class. However, the AJ did not find this evidence probative
of discrimination. The selecting official spoke to two supervisors at
Camp Casey. However, the supervisors were not identified. Therefore,
the evidence is not clear that the selecting official made his decision
based on racial remarks allegedly made by a supervisor. In addition,
complainant never alleged that her former supervisor said anything
discriminatory to the selecting official, but rather indicated that the
selecting official possibly spoke to the supervisor who allegedly made a
discriminatory remark. Thus, this allegation is not probative evidence
that the selecting official based his decision on discriminatory reasons
or was motivated by discriminatory animus.
After careful review of the record, we find that complainant was unable
to establish that the agency's explanation for either non-selection was
a pretext for discrimination. The record simply contains no persuasive
evidence from which we can find that the decisions were based on
any unlawful motivations. Although complainant's qualifications are
impressive, Court and Commission precedent have consistently held that
when there are equally desirable candidates and, absent discrimination,
a trier of fact should not substitute his judgment for the legitimate
exercise of managerial discretion. See Baur v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981); Jenkins v. Department of Interior, EEOC Request
No. 05940284 (March 3, 1005). Complainant, we note, has produced no
evidence, either testimonial or documentary, to support the finding
that her qualifications for either position were so plainly superior to
those of the selectees as to warrant a finding of pretext. See Patterson
v. Department of the Treasury, EEOC Request No. 05950156 (May 9, 1996).
Based on a through review of the entire record, and for the reasons
stated herein, it is the decision of this Commission to AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
Dec. 14, 1999
______________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATION OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.