01a54171
09-19-2006
Doris R. Rodgers,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A54171
Hearing No. 120-2003-0265X
Agency No. 0200181014
DECISION
On May 23, 2005, complainant filed an appeal from the agency's May
12, 2005 final order 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 accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS in part and REVERSES
in part the agency's final order.
ISSUE PRESENTED
Whether the agency has articulated a legitimate, non-discriminatory reason
to rebut the complainant's prima facie case of sex discrimination when
it did not select complainant for the positions of Preservation Manager
(GS-13) or Assistant Project Superintendent (GS-13).
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Services Zone Manager, GS-1601-12, at the agency's Norfolk
Naval Shipyard in Portsmouth, Virginia. On June 7, 2002, complainant
contacted an EEO Counselor and filed a formal EEO complaint on August
13, 2002, alleging that she was discriminated against on the basis of
sex when:
1. on May 10, 2002, she learned she had not been selected for the position
of Preservation Manager (PM), and that a male had been selected instead;
and
2. on six occasions, most recently in May 2002, she was not selected for
the position of Assistant Project Superintendent (APS), and that males
had been selected instead.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency thereafter filed a Motion for Summary Judgment,
arguing that it had set forth legitimate, non-discriminatory reasons for
complainant's non-selection which complainant had failed to rebut. The
complainant, through her attorney, filed a response to the agency's
motion, claiming the agency failed to articulate how the selections for
both the PM and APS positions were made.
On August 27, 2003, the AJ granted, without elaboration, the agency's
Motion for Summary Judgment. In its October 22, 2003 final decision,
the agency implemented the AJ's finding of no discrimination.
On appeal, the Commission vacated the agency's final decision and
remanded for a hearing after finding that the AJ improperly granted
summary judgment for the agency. Specifically, we determined that
there was evidence which, if accepted as true, would support the
conclusion that the complainant may have been more qualified for the
subject positions than the selectees. With respect to the PM position,
we found inconsistencies in the record between the criteria specified
by the selecting official and the criteria actually considered by the
recommending panel. Additionally, we noted complainant's concern that
the selectee had previously been placed in the PM position when no such
position had yet been created, and the reliance by the recommending
panel on the experience he gained there as a basis for selecting him over
complainant. As to the vacancies in the APS position, we noted that there
was insufficient evidence in the record regarding the selection process,
as well as a lack of evidence to support the agency's contention that the
APS selectees were better qualified for the subject positions than the
complainant. Rodgers v. Department of the Navy, EEOC Appeal No. 01A40249
(January 13, 2005).
Following the Commission's January 13, 2005 decision, the AJ held a
hearing on March 23, 2005, and issued a decision on April 14, 2005,
finding no discrimination in the selection actions for both the PM and
APS positions.
The agency's final order, which is the subject of the instant appeal,
implemented the AJ's decision on May 12, 2005.
ADMINISTRATIVE JUDGE'S DECISION
In her decision, the AJ, applying the three-part analysis enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973),1 found that
complainant had established a prima facie case of sex discrimination,
and then turned to the second prong of the McDonnell Douglas test.
Claim 1 - Preservation Manager
In the portion of her decision related to the PM position, the AJ relied
upon Decision Selection Worksheets (DSWs) completed by the three members
of the Recommending Panel that indicated the selectee scored 110 on the
selection qualification criteria (experience, service computation date,
education, awards, and nuclear experience), whereas complainant scored
only 90. In particular, the AJ determined that, based on his resume,
selectee had more education than complainant at the time of selection,
a finding borne out by the score sheets, where complainant scored a
3 and selectee scored a 5 in the category of education. Additionally,
the AJ based her decision on the affidavits and testimony of the members
of the Recommending Panel. Each member averred that selectee's nuclear
experience was a particularly compelling reason for complainant's
non-selection. Finally, the AJ noted that two of the panel members
indicated that selectee's two years of experience in the temporary PM
position was a factor that led to his eventual selection as the permanent
PM.
Based on this information and on the credibility of the witnesses, the
AJ found that the agency had articulated legitimate, non-discriminatory
reasons for choosing the selectee over the complainant. The AJ then held
that, with respect to the third prong of the McDonnell Douglas test,
complainant failed to show that, at the time of the selection action,
her qualifications were so obviously superior to those of the selectee
as to be evidence of pretext. Therefore, the AJ found no discrimination
with respect to the PM selection action.
Claim 2 - Assistant Project Superintendent
As to the subject six vacancies in the APS position, the AJ relied on
the testimony of one agency employee who had served on the Leadership
Council (which was responsible for recommending to the Selecting
Official personnel for each position) in finding that each of the
six male selectees was better qualified than complainant. For each
position, the Leadership Council member testified to at least one area
in which he believed the selectee's qualifications exceeded those of
the complainant.
The AJ noted that, in the absence of evidence of an unlawful motive,
deference is due to an agency's ability to set policy and carry out
personnel decisions, and an employer is entitled to flexibility in filling
management positions due to the nature of such positions. Ultimately,
after a review of the record and the credibility of the witnesses,
the AJ determined that complainant failed to demonstrate that her
qualifications were so clearly superior to those of the selectees as
to amount to pretext. Therefore, the AJ found no discrimination with
respect to the APS selection action.
CONTENTIONS ON APPEAL
Complainant's Contentions
On appeal, complainant, through her attorney, contends that the AJ's
decision should not be given the deference ordinarily due because it
failed to address the concerns and inconsistencies in the record noted
by the Commission in its January 13, 2005, decision. Additionally,
complainant argues that the evidence in the record and the testimony
elicited at the hearing demonstrate the agency's failure to articulate
legitimate, non-discriminatory reasons for her non-selections, as
required by Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981).
Claim 1 - Preservation Manager
First, complainant argues that the AJ failed to address the issue of
selectee's temporary assignment to the PM position, which technically
could not have occurred because the position did not officially exist.
Complainant further claims that no position description was ever
written for the PM position, and that the position was not created and
competitively opened until after selectee had been acting as PM for two
years. Complainant argues that the agency's action in this case amounts to
showing a preference for selectee by allowing him to work in the position
without having to compete for it, and then using the experience he gained
to give him an advantage when the position was announced as a vacancy.2
Nowhere in her decision does the AJ address these concerns.
Second, complainant argues the AJ failed to resolve the inconsistencies
in the record with respect to the selection qualification criteria
used in the selection action for the PM position. The record reflects
that the Selecting Official, in a memo to the Recommending Panel
members, indicated that the criteria to be considered were experience,
service computation date (SCD), education, awards, and knowledge of the
individual, when all candidates are known to at least one member of the
Recommending Panel. In a memo to the Selecting Official informing him
of the Recommending Panel's decision to recommend selectee, the Chair of
the Recommending Panel indicated that these same five criteria were used
in evaluating the candidates. Complainant objects, claiming the actual
criteria considered were experience, SCD, education, awards, and nuclear
experience,3 as indicated by the DSW completed by each panel member
and included in the record. Complainant further notes that the Chair of
the Recommending Panel admitted in his testimony that EEO factors were
also considered. Complainant contends it was error for the AJ to rely
solely on the DSWs in finding selectee more qualified than complainant
without a satisfactory explanation for the purported inconsistency in
the selection qualification criteria.
Third, complainant contends the AJ erred in failing to resolve conflicting
evidence about the prior job performance of the selectee. Specifically,
complainant notes the Chair of the Recommending Panel claimed selectee's
prior excellent work record played a part in his decision to choose
selectee over complainant for the PM position. However, there was
testimony introduced at the hearing that indicated that selectee's prior
work performance had been substandard.
Fourth, complainant argues the panel members were unable to explain
the process used in scoring the selection qualification criteria.
For example, complainant notes that the panel Chair claimed some awards
were more prestigious than others, but could not explain how a candidate
might earn a particular score in the awards category.
Finally, complainant argues that the AJ disregarded the panel members'
apparent lack of knowledge of complainant's qualifications for the PM
position.
Claim 2 - Assistant Project Superintendent
Complainant contends the AJ's decision with regard to the APS vacancies
was against the weight of the evidence. Complainant notes that six agency
personnel testified at the hearing about the APS selection process, but
the AJ relied on only one member's testimony to support her decision.
The other five members, complainant argues, were unable to state
with any authority who was present at the selection meetings, who was
responsible for making the six selections, what the procedure was for
scoring the applicants or whether the scoring included written scores, or
why complainant was not selected for any of the six vacancies. According
to complainant, the testimony of all six panel members, including the
member relied upon by the AJ, was inconsistent and often vague.
Complainant argues that, based on the record and the hearing testimony,
the AJ erred in finding that the agency met its burden of demonstrating
that it had a legitimate, non-discriminatory reason for not selecting
complainant to any of the APS vacancies.
Agency's Contentions
For its part, the agency argues that the decision of the AJ with
regard to both selection actions should be affirmed because, even if
complainant has established a prima facie case of sex discrimination,
she has not set forth evidence of facts which, if otherwise unexplained,
lead to an inference of discrimination. Further, the agency claims the
complainant is unable to demonstrate that her qualifications for the
subject positions were observably superior to those of the selectees. In
fact, the agency contends that it has demonstrated that the qualifications
of the selectees were plainly superior to those of complainant.
Claim 1 - Preservation Manager
To support its claim that the selectee was better qualified than
complainant for the PM position, the agency relies on the disparity in
education and nuclear experience between complainant and the selectee,
as evidenced by the DSWs completed by members of the Recommending Panel.
Specifically, with respect to the claimed inconsistent criteria considered
for the PM position, the agency argues it was appropriate for the panel
to consider nuclear experience because it was included under the heading
of "experience" and was an integral part of the subject position.
Claim 2 - Assistant Project Superintendent
The agency argues that the Leadership Council took into account the
type of work the agency was recruiting for in each APS vacancy when it
determined that the selectees were more qualified than complainant. The
agency relies on the same Leadership Council member's testimony as the
AJ in arguing that satisfactory reasons were provided for choosing each
selectee over the complainant.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
ANALYSIS AND FINDINGS
Complainant may establish a prima facie case of sex discrimination by
showing: (1) she is a member of a protected class; (2) she was qualified
for the subject positions; (3) she was not selected for the positions; and
(4) she was accorded less favorable treatment from that given to persons
otherwise similarly situated. Williams v. Department of Education, EEOC
Request No. 05970561 (August 6, 1998). Complainant may also set forth
evidence of facts from which, if otherwise unexplained, an inference
of discrimination can be drawn. Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978).
In the instant case, it is not disputed that complainant applied for
the PM and six APS positions. Although complainant was deemed qualified
for these positions by the agency, she was not selected. The record
reflects that the agency selected male individuals for all these
positions. Moreover, complainant alleged that males had been selected
for the past 22 APS positions. Consequently, we find that complainant
has established a prima facie case of sex discrimination.
The burden of production now shifts to the agency to rebut this
presumption by articulating a legitimate, non-discriminatory reason for
the non-selections. While the agency's burden is not onerous, it must
nevertheless provide a specific, clear, and individualized explanation for
the treatment accorded the complainant. Wilson v. Department of Veterans
Affairs, EEOC Appeal No. 01995055 (December 21, 2001). Complainant is
entitled to some rationale for her non-selections that provides her with
an opportunity to attempt to satisfy her ultimate burden of proving that
the agency's explanation was pretext for discriminatory animus. Id.
Claim 1 - Preservation Manager
The record reflects that the Chair and one member of the Recommending
Panel for the PM position testified at the hearing. The Panel members
received a memo from the Selecting Official indicating that the criteria
to be used in evaluating the applicants were experience, SCD, education,
awards, and knowledge of the individual, when all candidates were known
to at least one member of the Recommending Panel. The Selecting Official
also directed the Chair to ensure compliance with EEO policies.
The record indicates that the Recommending Panel evaluated six candidates,
including complainant. The record further reflects that each Panel member
completed a DSW, scoring each candidate in the areas of experience, SCD,
education, awards, and nuclear experience. Each criterion was scored on a
scale of 1-5, 5 being the highest, and was then multiplied by a weighting
factor to achieve a final score. The final scores for each criterion
were added to reach a composite score for each candidate. Although
the members who testified stated there was no discussion among the
Panel members regarding a scoring system, all three Recommending Panel
members gave the same score to each candidate. The record reflects
that selectee scored highest, receiving a score of 110 from each Panel
member. Complainant received a score of 90, and the other four candidates
received scores of 95, 95, 90, and 75.4 The only differences between the
DSWs of complainant and the selectee appear in the areas of education
and nuclear experience. Complainant received a 3 in each area, whereas
the selectee received a 5.
With regard to the education criterion, the record indicates that the
Chair testified that the selectee's educational history was better suited
to the PM position than complainant's. Specifically, the Chair noted
that the selectee had an industrial management degree, while complainant
only completed an apprenticeship. The Chair also testified that the
selectee had attended numerous management training courses, while the
training courses complainant had attended were more business-oriented. The
Panel member stated that although both the selectee and the complainant
were graduate apprentices, the selectee had completed the industrial
management scholarship program. The Panel member testified that he was
"involved with" the industrial management program and was therefore
very familiar with its components. The Panel member also stated that
this weighed heavily in his consideration of the selectee because of
the relation of the program's components to the PM position.
With respect to the nuclear experience component, the Chair indicated
that, based on the type of position being selected for, the consideration
of nuclear experience was necessary to ensure that the most appropriate
person was selected. The Chair testified that the selectee had been a
Nuclear Mechanical Zone Manager and was nuclear qualified. The Panel
member testified that the PM position interfaced a great deal with
nuclear components, so it was essential to select a person with nuclear
experience. The Panel member also stated that the selectee had extensive
experience in refueling, which is "heavy nuclear work." In contrast,
the Panel member stated that complainant's nuclear experience was "very
limited" in comparison to the selectee.
Overall, the Chair testified that, based on the applications and the
DSWs, and taking into account prior work experience and performance, as
well as the nature of the job, the selectee was far and away the best
qualified candidate for the PM position. The Panel member concurred,
stating that he would not have recommended the selectee if he did not
believe the selectee was the best candidate.
As to the inability of Recommending Panel members to specify scoring
levels for each criterion, we find that the Panel members sufficiently
explained their reasons for scoring the complainant and the selectee
as they did on education and nuclear experience. With respect to the
claimed inconsistency in the criteria considered, we are satisfied that,
absent any evidence that the agency chose nuclear experience in order
to eliminate complainant from contention, the agency is justified in
using whatever criteria it determines is most useful in choosing the
best candidate for a given position.
The Selecting Official for the PM position averred that he only reviewed
the DSWs, and because he was satisfied that the selectee scored
sufficiently higher than the other candidates, he did not discuss
the scoring process or the candidates' qualifications with the Panel
members. As we are satisfied with the Recommending Panel's explanation
for its recommendation of the selectee to the Selecting Official, we find
no error in the Selecting Official's failure to review the applicants'
qualifications personally. See Padilla v. Department of Housing and
Urban Development, EEOC Appeal No. 01986538 (August 14, 2001).
For these reasons, we find the agency has articulated legitimate,
non-discriminatory reasons for complainant's non-selection to the PM
position sufficient to rebut complainant's prima facie case of sex
discrimination. Additionally, we find that complainant has failed to
demonstrate that she is so plainly better qualified for the position than
the selectee that the agency's articulated reasons for her non-selection
could be considered pretext for sex discrimination. Accordingly, we
AFFIRM the agency's final decision with respect to Claim 1 and find no
discrimination.5
Claim 2 - Assistant Project Superintendent
The record reflects that six members of the Leadership Council (all male)
testified at the hearing. Each member testified that the procedure for
promotions at the time of this non-selection action was substantially
as follows: For a level 13 position, like the one at issue, the
Recommending Official (or RO, who was a member of the Leadership Council)
independently evaluated all the candidates deemed best qualified and then
presented the list to the Leadership Council, already ranked in order
of the RO's preference. The names of the candidates, along with their
scores on a number of criteria, were projected onto a white board or
"view graph" during the Leadership Council meetings. The applications of
the best qualified individuals were available in the meeting room for
any member to review, though not all members reviewed all (or any) of
the applications. The RO recommended to the Leadership Council that the
highest ranked applicant be selected, and the Leadership Council members
would discuss the proposed selection, as well as other candidates, and
then vote. The vote was a simple thumbs up or thumbs down, with the
majority prevailing. Once the Leadership Council reached a consensus,
a selection letter was signed by the RO and forwarded to the Selecting
Official for his approval. The Selecting Official then accepted or
rejected the Leadership Council's recommendation.
The Leadership Council, testimony revealed, was made up of Shop
Superintendents, Project Superintendents, and Project Managers. There was
conflicting testimony as to the number of Council members, but the Chair
of the Leadership Council averred that, at the time of this non-selection
action, the Leadership Council consisted of fourteen members. Not all
members attended each meeting of the Leadership Council, and none of the
members who testified could remember specifically who was involved in
the six APS vacancies at issue. The Selecting Official, while a member
of the Leadership Council, generally did not attend the meetings where
selection recommendations were made.
None of the members of the Leadership Council who testified was able
to state with any authority how the candidates for the APS positions
were ranked, which members of the Leadership Council presented the
various candidates, what was discussed with respect to each applicant
during the selection meetings at issue, or even which members of the
Leadership Council were present for the selection meetings. The Chair of
the Leadership Council testified that he believed he was present for two
of the presentations, given that he signed the recommendation letters, but
stated that he could not remember conclusively. With a single exception,
the Leadership Council members were unable to articulate the reasons
the Leadership Council chose the selectees over complainant.
In light of the testimony of the other Leadership Council members and
the lack of documentation in the record regarding the specifics of
the selection process for these positions, we find the testimony of
a single Council member to be insufficient. At best, this witness
testified to the opinions he held about the relative qualifications
of the selectees and complainant. There was no corroborating evidence
whatsoever from any of the other Leadership Council members that these
opinions were the actual reasons for the selections made by the council
as a whole. Moreover, there is no documentary evidence either kept, or
even made, by the agency to support the selection decisions. Where the
agency fails to provide an explanation for a review committee's respective
weighing of the various qualifications of candidates, the agency fails
to adequately articulate legitimate, non-discriminatory reasons for
the selection decision sufficient to rebut complainant's prima facie
case of discrimination. See Glomski v. United States Postal Service,
EEOC Appeal No. 01955517 (July 17, 1997), request for reconsideration
denied, 05970998 (February 20, 1998).
As already noted, no written documentation of the APS selection process
that would have provided some evidence to support the agency's selections
has been produced, and by all accounts, none was kept. Where, as here,
the ability to conduct a comparative analysis of the complainant and the
selectees is effectively thwarted, the agency has not presented sufficient
evidence to set forth a specific, clear, and individualized explanation
as to why complainant was not selected. See Wilson v. Department of
Veterans Affairs, EEOC Appeal No. 01995055 (December 21, 2001).
The Selecting Official for the APS vacancies at issue averred that he
did not review the scoring of the applications and simply relied upon the
recommendations of the Leadership Council. Where the Selecting Official
bases a selection decision on the recommendations of a reviewing panel,
and where the agency provides no explanation as to why the reviewing panel
chose selectees over complainant, the agency does not satisfy its burden
to provide complainant with a full and fair opportunity to demonstrate
that the agency's explanation is pretextual. See Padilla v. Department
of Housing and Urban Development, EEOC Appeal No. 01986538 (August 14,
2001).
For these reasons, we find the agency has failed to articulate a
legitimate, non-discriminatory reason for complainant's non-selection to
the APS positions sufficient to rebut complainant's prima facie case of
sex discrimination. Accordingly, we REVERSE the agency's final decision
with respect to Claim 2 and find discrimination. Claim 2 is hereby
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER (D0900)
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively promote complainant to the Assistant
Project Superintendent, GS-13, position, or a substantially equivalent
position, effective April 21, 2002.
2. The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
3. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support
of her claim for compensatory damages within forty-five (45) calendar
days of the date complainant receives the agency's notice. The agency
shall complete the investigation on the claim for compensatory damages
within forty-five (45) calendar days of the date the agency receives
complainant's claim for compensatory damages. Thereafter, the agency
shall process the claim in accordance with 29 C.F.R. � 1614.108(f).
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
5. The agency shall complete all of the above actions within 120 calendar
days from the date on which the decision becomes final.
POSTING ORDER (G0900)
The agency is ordered to post at its Norfolk Naval Shipyard facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. � 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
September 19, 2006
__________________
Date
1 McDonnell Douglas held that a claim of disparate treatment is
examined under a three-part analysis. For complainant to prevail, she
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. See McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. See Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact
finder by a preponderance of the evidence that the agency acted on the
basis of a prohibited reason. See St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
2 Complainant notes that a temporary detail lasting more than 120 days
violates the agency's own regulations.
3 The record reflects that selectee received a score of 5 in this
category; complainant received a score of 3.
4 The record indicates that the selectee was the only candidate to
receive a "perfect" score overall, earning a 5 in each category.
5 The alleged violation of Navy regulations with respect to the temporary
placement of selectee in the PM position is not a matter within the
jurisdiction of the Commission, and we therefore decline to address it.
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01A54171
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A54171