Deborah Douglas-Sladev.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.

Equal Employment Opportunity CommissionJan 28, 2000
01981053 (E.E.O.C. Jan. 28, 2000)

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.