0120080857
07-24-2009
Dorcas D. Holmes, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Dorcas D. Holmes,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 0120080857
Agency No. DLAN070420
DECISION
On December 11, 2007, complainant filed an appeal from the agency's
November 29, 2007 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether complainant established, by a preponderance of the evidence,
that she was not selected for the Public Affairs Specialist position
because of the agency's unlawful discrimination or retaliation.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Conference Center Facilitator, GS-0301-09, assigned to the Defense
Distribution Center (DDC), New Cumberland, Pennsylvania. On November
21, 2006, complainant filed an EEO complaint alleging that she was
discriminated against on the bases of race (Black), color (black), and
reprisal for prior protected EEO activity [arising under Title VII] when:
(1) on October 30, 2006, she was not selected for the position of Public
Affairs Specialist, GS-1035-09 target 11, which was advertised under
Job Opportunity Announcement (JOA) Number DDC-06-2995;
(2) on November 1, 2006, she learned that the Chief of Staff had not
followed union regulations when complainant was issued a Decision to
Reprimand, dated November 1, 2006, and
(3) on November 7, 2006, her supervisor told her that she did not follow
a memorandum pertaining to time and attendance.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Initially, complainant
requested a hearing, but subsequently withdrew said request and asked for
a final decision by the agency. In accordance with complainant's request,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she was
subjected to discrimination as alleged.
The FAD initially explained that it dismissed issue (2) because
complainant filed a union grievance on the same issue, as well as
dismissing issue (3), for failure to state a claim. The FAD then
found as follows: Complainant applied for the position at issue;
was rated as qualified; and was referred to the selecting official
for consideration, along with several other candidates. The Merit
Promotion Referral Certificate had the names of five applicants, one
of whom was complainant. The Command Affairs Officer (CAO), GS-1035-14
(race: White; color: white; aware of complainant's prior EEO activity)
reviewed the applications and selected the selectee (S1) (race: White;
color: white; no prior EEO activity) for the position at issue.
The FAD then found that complainant established a prima facie case of
race and color discrimination in that her race/color is Black, and she
applied for the subject position, was determined to be qualified, but was
not selected for the position at issue. Additionally, someone not in her
protected classes was selected for the position. The FAD also found that
complainant has established a prima facie case of discrimination based
on reprisal. Specifically, she has previously engaged in protected EEO
activity; the agency was aware of complainant's participation in the
protected activity; the agency took action which adversely affected
complainant; and the adverse action followed the protected activity
within such a period of time that a retaliatory motive could be inferred.
The FAD then found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, CAO stated
that she reviewed the applications and selected the "best candidate."
CAO stated that she did not interview all of the candidates but instead
chose to only interview the "best candidates." She also stated that she
only interviewed the candidates that she felt "had the highest potential
from their applications." She stated the following:
The individual I selected [S1] is currently a GS-12 Public affairs
Specialist at Ft. Detrick, Maryland, has many years of active duty
military public affairs specialist experience (to include deployment as
the "media spokesperson"), completed DINFOS, and had recognition/award
as a Public Affairs Specialist. He writes articles, deals with the
community on environmental and good neighbor issues, does the newspaper,
develop communications plans, lots of other writing experience/press
releases/media advisories, has protocol/event experience, narrator
experience, ceremony experience, etc. His deployment experience I
thought [was] very related and useful as we deploy CONUS and OCONUS for
disaster/humanitarian/contingency assistance through DDXX (new requirement
- identified in JOA as being TDY deployable for periods of time).
His interview answers were smooth, good eye contact and body language,
people oriented, on point and to the point, calm/friendly, and came across
as clearly wanting to be in public affairs as his career - in summary.
It was clear that for every task that I would need him to perform - he
has been there and done that. There would be only orientation required
- as he is thoroughly versed in the DOD/military public affairs arena.
He also had great references.
The FAD further found that with regard to why she did not select
complainant, CAO stated that complainant did not possess the needed
skills and that she did not believe that complainant was well qualified
for the position. She went on to state that she had responded to
complainant in writing after she had inquired as to why she had not been
selected for a Public Affairs Specialist position. CAO also stated that,
after reviewing complainant's application, she found that complainant
had presented work experience in a few different jobs, which she had
presented as jobs that she had worked simultaneously while working for
her, which was either due to typographical errors, confusion, or basic
inaccuracy, none of which is acceptable in Public Affairs.
The FAD further found the following: CAO indicated that while complainant
worked hard to present her experiences in the best possible light,
she mixed the tasks of different jobs and gave definitions which do
not describe actual duties performed. Additionally, her education was
"education focused and not management focused, not oriented to public
affairs - although some of the courses could be good basics for the
field." CAO further noted that with regard to why she did not interview
complainant for the position at issue, she had interviewed complainant
twice before for a Public Affairs Specialist position in her office.
The FAD then found that complainant failed to establish that such reasons
were pretexts for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates her version of the facts, including
that CAO only interviewed her once in the past. She also reiterates
her contention that CAO has intentionally placed a 3.5 grade point
average (GPA) stipulation on the Public Affairs Specialist, GS-7/11
position when there was no bono fide occupational qualification
(BFOQ) necessary for that position because CAO knew that complainant's
undergraduate GPA was 2.9., but her graduate GPA was a 4.0. She asserts
"To be constantly passed up for promotion opportunities when you have
sought ways to better yourself, even denied the opportunity to better
yourself while your co-workers are allowed those same opportunities,
is clear discrimination."1 In reply, the agency states: "Essentially,
Appellant's brief is an unsupported document manifesting her disagreement
with the facts of record, and contains no new evidence that the Agency's
reasons are pretext for unlawful discrimination." The agency asks the
Commission to affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, complainant has established a prima facie case of
discrimination on the alleged bases. The agency has also put
forth a very specific and comprehensive explanation for why S1 was
selected, and complainant was not. Despite complainant's arguments, the
Commission simply cannot conclude that complainant has demonstrated, by a
preponderance of the evidence, that the agency's articulated legitimate,
nondiscriminatory reasons are merely pretextual. We note additionally,
that even if (as she notes on appeal) complainant was only interviewed
once in the past, and even if CAO knew that complainant would not
be able to meet the GPA requirement, these facts, in themselves, are
insufficient to prove that CAO was motivated by discriminatory animus
in this selection process. CAO articulated numerous other legitimate,
nondiscriminatory reasons (such as errors on her resume), besides
her GPA, for why she did not select complainant. We note finally,
that we do not have the benefit of an AJ's findings after a hearing,
as complainant chose a FAD instead, and therefore, we can only evaluate
the facts based on the weight of the evidence presented to us.
Additionally, we note that the agency has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek
v. Department of the Treasury, EEOC Request No. 05940906 (January 16,
1997). Complainant may be able to establish pretext with a showing that
her qualifications were plainly superior to those of the selectee. Wasser
v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995);
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, complainant
has failed to make this showing.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
____07/24/09______________
Date
1 We note that on appeal, complainant did not specifically challenge
the agency's decision to dismiss issues (2) and (3), and therefore,
we shall not address those issues herein.
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0120080857
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080857