01976060
10-27-1999
Debra R. Lacey, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Debra R. Lacey v. Department of the Army
01976060
October 27, 1999
Debra R. Lacey, )
Appellant, )
) Appeal No. 01976060
v. ) Agency No. ANBHFO9607G0520
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
retaliation based on prior EEO activity and discrimination based on race
(Black), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e, et seq., when she was not selected for
promotion to any of three GS-2001-11 General Supply Specialist positions,
two of which were permanent and one of which was temporary. The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED AS CLARIFIED.
The record reveals that during the relevant time, appellant was
employed as a General Supply Specialist, GS-2001-09, at the agency's
ATCOM facility in St. Louis, Missouri. Believing she was a victim of
retaliation and discrimination, appellant sought EEO counseling and,
subsequently, filed a complaint on July 11, 1996, alleging disparate
treatment as referenced above. At the conclusion of the investigation,
appellant requested a hearing before an Administrative Judge (AJ) of the
Equal Employment Opportunity Commission (EEOC), but subsequently withdrew
her request. Accordingly, the agency issued a final agency decision.
The FAD concluded that appellant failed to establish a prima facie case
of race discrimination because the selectee for the temporary position
was the same race as appellant (Black), and that appellant therefore had
allegedly failed to present evidence that similarly situated individuals
not in her protected class were treated differently under similar
circumstances.
The FAD further concluded that appellant had failed to establish a prima
facie case of retaliation because the selecting official (SO1) denied
knowledge of appellant's prior EEO activity, and appellant offered no
contrary evidence.
The FAD additionally concluded that even assuming arguendo appellant had
established a prima facie case of race discrimination or retaliation, SO1
articulated a legitimate, non-retaliatory and non-discriminatory reason
for not selecting appellant because she attested that the selectees
were chosen based on their experience as it specifically related to
Materiel Distribution Management and Inventory and Stock Control, which
was reinforced by awards received, training, and the personal interview.
The FAD concluded that appellant had failed to present any direct or
indirect evidence which demonstrated by a preponderance of the evidence
that her non-selection was based on race discrimination or retaliation.
On appeal, appellant contends that the agency failed to consider a number
of her arguments. Specifically, appellant contends: (1) SO1 had knowledge
of appellant's prior EEO activity because during its pendency, SO1 had
been appellant's immediate supervisor, had placed appellant on leave
without pay status when appellant had to attend hearings, and charged
appellant leave time when she met with her lawyer; and, (2) the other
Black candidate referred to in the FAD was selected for a temporary
rather than a permanent position, remained a GS-9, was potentially
subject to a one-year tenure due to a forthcoming reorganization, and
filed a discrimination complaint herself relating to these matters.
The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission disagrees with the FAD's conclusion that
appellant failed to establish a prima facie case of race discrimination.
Notwithstanding the fact that SO1 selected a Black candidate for the
temporary position, the selectees for the two permanent positions at
issue were of a different race than appellant. Accordingly, with respect
to the two permanent positions, appellant has established a prima facie
case of race discrimination because she has demonstrated that she is a
member of a protected class, that she was subjected to adverse action
(non-selection), and that similarly-situated employees outside her
protected class were treated more favorably.
Additionally, with respect to appellant's retaliation claim, the
Commission disagrees with the FAD's conclusion that appellant failed
to demonstrate a prima facie case. Where reprisal is the basis for
a Title VII claim, an appellant may establish a prima facie case
of discrimination by showing that: (1) he engaged in prior protected
activity; (2) an official named in the complaint knew of that activity;
(3) he was disadvantaged by an action of the employer subsequent to
or contemporaneous with such opposition and participation; and (4) the
protected activity and the adverse action were sufficiently close in time
or is of such a manner as to permit an inference of retaliatory motive.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
Without citation or explanation, the FAD states that SO1 denies any
knowledge of appellant's prior EEO activity. To the contrary, in her
sworn statement, SO1 expressly acknowledged that she became appellant's
immediate supervisor during the pendency of appellant's prior EEO claim,
and was in fact aware of it because appellant had expressly advised
her of the pending claim at that time. See Record of Investigation
(ROI) at 97-98. Appellant has therefore satisfied the first, second,
and third elements of the prima facie case. With respect to the fourth
element, although appellant's prior EEO activity took place in 1994 and
the non-selection here at issue took place in 1996, SO1 concedes that
she and appellant had interactions regarding appellant's time spent on
her prior EEO claim while it was pending. Accordingly, we find on the
facts of this particular case that appellant has established a prima
facie case of retaliation as well.
However, the Commission finds that appellant failed to present evidence
establishing that more likely than not, the agency's articulated
reason for her non-selection was a pretext for race discrimination
or retaliation. SO1 attested that appellant was not selected because
she had lower scores than the selectees in the ranking system which SO1
used to compare the applicants' experience and awards. See ROI at 94.
SO1 attested that she emphasized experience in Materiel Distribution
Management at the GS-7, GS-9, and GS-11 levels, and any experience in
the Inventory Stock Control Area, and awarded scores based on a point
system for each year of experience. She followed a similar procedure
to give points for awards (received during the prior ten years) and
training (courses lasting one week or more, with preference given to
Supply Management courses). She then referred to other experience
and supervisor ratings as "tie-breakers." Id. at 90-92. Using this
system, even though appellant had been employed longer with the federal
government, she did not score as high as the selectees, and in fact was
not among the top six ranked applicants. Id. at 95.
Appellant contends that SO1's proffered explanation for her non-selection
is pretextual because appellant was previously detailed to a job as a
Packaging Specialist, thus resulting in her certain experience not being
in the Inventory Stock Control Area. Appellant asserts that this earlier
assignment was a purposeful action by management to limit her promotion
potential. Moreover, appellant contends that SO1 did not abide by the
published selection criteria, because Inventory Stock Control is not noted
in the Job Opportunity Announcement (JOA) as warranting special emphasis.
See ROI at 17-21. Appellant also asserts that SO1 improperly gave less
weight to abbreviated or condensed training courses (those lasting less
than one week). Appellant also notes that she was initially not placed
on the list of qualified candidates prepared by personnel and referred
to SO1 for interviews, see ROI at 117-18, but was added later. Finally,
appellant contends that the selectees were pre-selected, and were seen
cleaning out their desks in anticipation of promotion even before the
final selections were announced.
These factors, even in combination, are insufficient absent more to
demonstrate that SO1's proffered basis for her selections was a pretext
for discrimination or retaliation. There is no evidence that appellant's
assignment as a Packaging Specialist was part of a discriminatory or
retaliatory scheme to undermine her promotion potential. The record
reveals that appellant's second-line supervisor (SO2), not SO1, made
the decision to assign appellant. Moreover, SO2 asserted to the EEO
Counselor that given the selectees' far longer experience in the relevant
areas,<1> even if SO1 had counted appellant's GS-5 service in Requisition
Processing, it would not have changed the result. See ROI at 9 and
Enclosure 11 (SO1's matrix comparing candidates' experience, training,
and awards). In addition, while it is true that appellant was initially
not included on the "highly qualified" list, this list was compiled by
a personnel employee, not SO1. With respect to the emphasis SO1 placed
on Inventory Stock Control, SO1 advised the EEO Counselor that this was
"part and parcel" of the work in her branch, ROI at 9, and appellant does
not dispute this. Finally, while the evidence regarding pre-selection
is disputed, even accepting arguendo appellant's assertion that the
selectees were aware of their selection in advance, this alone does not
compel a finding of retaliation or discrimination in light of the other
facts of record. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993) (it is not sufficient to "disbelieve the employer; the fact finder
must believe the plaintiff's explanation of intentional discrimination")
(emphasis in original).
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the FAD is AFFIRMED AS
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
10/27/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Under the measurement used by SO1, the selectees possessed 6 years and
9 months, 5 years and 6 months, and 4 years and 7 months of experience in
the relevant area, respectively. By comparison, appellant had 1 year and
5 months of relevant experience.