01981053
01-28-2000
Deborah Douglas-Slade v. Department of Justice (INS) 01981053 January 28, 2000 . Deborah Douglas-Slade, Complainant, v. Janet Reno, U.S. Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Deborah Douglas-Slade v. Department of Justice (INS)
01981053
January 28, 2000
.
Deborah Douglas-Slade,
Complainant,
v.
Janet Reno,
U.S. Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01981053
Agency No. I-96-6767
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (black) and sex (female) in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. <1>
Complainant alleges she was discriminated against on March 21, 1994,
when she learned that she had not been selected for a GM-13/14 Program
Analyst position advertised in Vacancy Announcement No. 93-09-H. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, the agency sought
three GS-13/14 Program Analysts for its Office of Management Division, in
Washington, D.C. The Program Analyst positions were to provide "technical,
implementation, and monitoring authority on the Federal Managers Financial
Integrity Act" pertaining to "fraud, waste, and abuse, to develop the
long-range program plans and goals; and to provide management direction,
coordination, and oversight ... to enhance protection of funds and
property and reduce the potential for waste, fraud and abuse." The
selecting official for the Program Analyst positions was the Resource
Management Division Director. Associate Commissioner for Human Resources
and Administration was the Director's superior.
Complainant, a GS-13 employee of another federal agency, applied for
one of the Program Analyst positions and was certified at the GS-13
and GS-14 levels. An internal agency candidate, a white male who was
also certified at the GS-14 level, was immediately selected without an
interview on May 27, 1993. Complainant and several other candidates who
did not currently work for the agency were subsequently interviewed,
and agency officials made oral offers of employment to complainant and
a white female candidate. The agency imposed then an agency-wide hiring
freeze on May 28, 1993, for positions GS-11 and above. As a consequence,
complainant and the other candidate were not hired.
Believing she was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a complaint on October 20,
1995. By letter dated January 26, 1996, complainant was advised that her
allegation had been accepted for investigation. At the conclusion of the
investigation, complainant was sent a copy of the investigative file and
notified of the opportunity to request either a hearing before an EEOC
Administrative Judge or a FAD without a hearing. On September 16, 1996,
complainant's representative requested a final Department of Justice
decision. Thereafter, the agency issued its FAD on October 23, 1997.
In its FAD, the agency concluded that complainant established prima
facie cases of race and sex discrimination when she demonstrated that
she had applied for the position in question, a white male was selected,
and she was not hired. However, the agency concluded that its officials
articulated legitimate, nondiscriminatory reasons for its actions,
namely, that the white male selectee was immediately chosen, without an
interview, because he was an internal candidate and his prior good work
was well known to the selecting official and his superior. The agency
asserted that since its officials were not familiar with the work habits
and effectiveness ("skills and abilities") of the outside candidates,
further interviewing of these candidates, including complainant,
was necessary before a final determination could be made. Furthermore,
the agency maintained that it wanted to hire complainant, as well as the
white female candidate, but was unable due to the hiring freeze on May 28,
1993. Also, the agency's Former Executive Associate Commissioner noted,
"I was the only person in the agency who could make exceptions to the
hiring freeze," and that he declined to do so because "I simply decided
to stick hard and fast to the hiring freeze ... no matter who showed up
for employment. "Additionally, the agency noted that complainant was not
hired after the freeze was lifted because the position had been eliminated
due to financial problems and the de-emphasis of the Management Control
Program. Finally, the FAD found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination.
On appeal, complainant contends that the agency failed to consider a
number of her arguments. Complainant contends, mainly, that because
the agency was under "considerable pressure and scrutiny" by members of
Congress to hire minorities as a result of its dismal employment record,
it should have found a way to hire complainant, irrespective of the
hiring freeze on May 28, 1993. Complainant argues that management could
have made a vigilant effort to hire her, just as it did
to hire the white male selectee. Complainant asserts that she was highly
qualified; agency officials professed to have wanted her; and she was
interviewed "some eleven days before the hiring freeze and ten days
before the white male was selected."
ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). Complainant has the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. If complainant meets this burden, then the burden shifts
to the agency to articulate some legitimate, nondiscriminatory reason
for its challenged action. 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 pretext for discrimination. Id. at 256.
I. Prima Facie Cases
Complainant can establish a prima facie case of race or sex discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411
U.S. at 802). In general, complainant can establish a prima facie case
of discrimination by showing: (1) that she is a member of a protected
group; (2) that she was qualified for the position; (3) that she was not
selected for the position; and (4) that the selectee was not a member of
complainant's protected group. The Commission finds that complainant has
established prima facie cases of race and sex discrimination because:
(1) she was a member of protected groups, black and female; (2) she was
qualified for the position, as evident from her placement on the Roster
of Eligibles and subsequent oral offer of employment from the agency;
(3) she was not selected for any of the of the three Program Analyst
positions; and (4) the selectee was a non-black male and thus not a
member of complainant's protected groups. See McDonnell Douglas, 411
U.S. at 802.
II. Legitimate, Nondiscriminatory Reason
After complainant establishes a prima facie case of discrimination,
the burden now shifts to the agency to articulate a legitimate,
nondiscriminatory reason for not selecting complainant. Burdine, 450
U.S. at 253. The agency maintained that the white male selectee was
immediately chosen, without an interview, because he was an internal
candidate and his prior good work was well known to the selecting
official and his superior. The agency stated that it decided to further
interview complainant because it was not privy to complainant's "skills
and abilities." Furthermore, the agency articulated that, but for the
hiring freeze on May 28, 1993, for positions GS-11 and above, complainant
would have been hired into one of the GM-13/14 Program Analyst positions
advertised in Vacancy Announcement No. 93-09-H. Finally, the agency
indicated that complainant was not hired after the freeze was lifted
because the position had been eliminated due to financial problems
and the de-emphasis of the Management Control Program. The Commission
finds that the agency has articulated legitimate, nondiscriminatory
reasons explaining why complainant was not selected for the positions
in question.
III. Pretext for Discrimination
Because the agency has articulated legitimate, nondiscriminatory
reasons for its selection decision, complainant now bears the burden
of establishing that the agency's articulated reasons are a pretext for
discrimination. Shapiro, supra. Complainant can do this by showing that
a discriminatory reason motivated the agency. Id. (citing St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993). The Commission has held:
Disbelief of the agency's articulated reasons does not compel a finding
of discrimination as a matter of law. However, disbelief of the reasons
put forward by the agency, together with the elements of the prima facie
case, may suffice to show intentional discrimination.
Jones v. Department of Veterans Affairs, EEOC Request No. 05940013
(Nov. 2, 1995) (citing St. Mary's Honor Center, 113 S.Ct. at 2749)
(other citations omitted). The Commission has also held:
[I]t is not the Commission's function to substitute its business
judgment for that of the agency. An agency has discretion to choose
from among equally-qualified candidates so long as the decision is not
based on unlawful factors. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). Nor is it sufficient for a complainant to show, without more,
that an employer's choice was an unsound business decision, was unfair,
or was motivated by an ill feeling or arbitrariness. Keyes v. Secretary
of the Navy, 853 F.2d 1016, 1026 (1st. Cir. 1988).
Jenkins v. Department of the Interior, EEOC Request No. 05940284 (Mar. 3,
1995).
After a thorough review of all the evidence of record, the Commission
finds that complainant has failed to meet her burden of establishing,
by a preponderance of the evidence, that the agency's reasons for
her nonselection was a pretext masking discrimination. We note that
while complainant had certainly appeared qualified for the disputed
position, the selecting official and his superior immediately accorded
significant weight to the selectee's work record at the agency. Since
agency officials were not familiar with the work habits and effectiveness
of complainant, further interviewing of complainant was necessary before
a final determination could be made. In addition, the evidence revealed
that the complainant was a popular candidate among agency management. It
appears that, but for the May 28, 1993 hiring freeze, the agency would
have hired complainant. There is, however, no credible evidence to
demonstrate that the agency's actions in this situation were rooted in
discriminatory animus under any of complainant's alleged bases.
Moreover, the record reflects that a white female was also subjected to
similar treatment. Thus, the Commission finds that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination.
Therefore, 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 agency's
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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.