01A13955
10-16-2002
Eileen J. Roemer, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Eileen J. Roemer v. Department of Justice
01A13955
October 16, 2002
.
Eileen J. Roemer,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A13955
Agency No. F-00-5428
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning her complaint of unlawful 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.
At all times relevant to the agency action at issue, complainant
was employed as a Supervisory Special Assistant (SSA), GS-14, at FBI
Headquarters in Washington, D.C. In August, 1999, complainant submitted
an application for the position of SSA, GS-14, at the agency's Orlando
Resident Agency. The agency subsequently convened a local career board
to review the applications submitted and to rank the top candidates for
the position. On September 23, 1999, the board convened for this purpose,
and ranked the top five of the thirteen candidates, with complainant
being ranked fourth. The board submitted its candidate ranking to the
agency, and the agency determined that, based upon the designation of the
position, the top-ranked candidate was ineligible for the position because
he lacked FBI Headquarters experience. The second-ranked candidate had
already been accepted for another position, so the agency selected the
third-ranked candidate, a male.
Complainant claimed in her complaint that she had been subjected to
unlawful discrimination on the basis of her sex when she was not selected
for the SSA, GS-14, Orlando Resident Agency position. At the conclusion
of the agency's investigation into her complaint, complainant was informed
of her right to request a hearing before an EEOC Administrative Judge or,
alternatively, to receive a FAD by the agency. Complainant requested
that the agency issue a FAD.
In its FAD, the agency concluded that the record did not support
complainant's sex discrimination claim. The agency found that there
was no indication in the record that the members of the board had been
motivated by discrimination in their ranking of the candidates, and that
complainant did not offer any evidence which would suggest that such an
unlawful motivation was at work in the board's decisionmaking process.
The agency further found that the record showed that complainant and the
selectee had been rated identically by the board in six of the eight
elements being assessed for rating purposes. The agency also found
that the selectee had been rated higher than complainant in the seventh
element, Resident Agency experience, which the board had determined
was more important than the eighth element, Task Force experience, in
which complainant had been rated higher than the selectee. The agency
also addressed complainant's claim that the board's top ranking of an
individual without FBI Headquarters experience ignored the agency's Manual
of Administrative Operations and Procedure, noting that even though the
board included in its ranking some candidates who lacked FBI Headquarters
experience, the agency disregarded those candidates in its selection
decision. The agency also noted that even if the candidates lacking FBI
Headquarters experience had not been included in the board's ranking,
complainant would still have received a lower ranking than the selectee.
On appeal, complainant contends that she was better qualified for the
position than the selectee, that the agency's determination that Resident
Agency experience is more important to the position than Task Force
experience is not supported by any evidence, and that even if Resident
Agency experience is more important, she has outstanding experience in
that area. Complainant also challenges the agency's decision not to
include in the investigative record two reports, produced by the agency
independently of this complaint, which concern the level of female
representation in the agency's higher-level and management positions.
The agency requests that we affirm its FAD.
After a thorough examination of the record on appeal, we conclude that
the agency properly determined that complainant did not establish that
she had been subjected to unlawful sex discrimination as claimed. In a
claim such as that presented by complainant, which alleges disparate
treatment based upon sex in violation of Title VII, and where there is
an absence of direct evidence of such discrimination, the allocation
of burdens and order of presentation of proof is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First,
complainant must 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. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
Our examination of the record reveals that complainant met her initial
burden of establishing a prima facie case of sex discrimination, as she
applied and was qualified for the SSA position, but was not selected,
and a person not of her sex was the eventual selectee. The record
also shows that the agency met its burden of articulating legitimate,
nondiscriminatory reasons for its actions, as discussed above.
We cannot conclude, however, that complainant has presented evidence
sufficient to prove that the agency's articulated reasons are merely
pretext for discrimination. The agency correctly stated in its FAD that
there is no evidence in the record which indicates that any unlawful
discrimination was present in either the board's ranking of the candidates
or the agency's ultimate selection decision. While complainant claims
that the board's determination that Resident Agency experience was to
be accorded less weight than Task Force experience is unsupported by any
evidence, the record contains a transcript of the board's September 23,
1999 meeting, which included discussion on the merits of ranking the
eight criteria, including discussion on why the board chose to accord
Resident Agency experience more weight than Task Force experience.
We are therefore unconvinced by complainant's argument on this point.
Complainant claims in the alternative that even if Resident Agency
experience is to properly be accorded more weight in candidate ranking
than Task Force experience, she had �outstanding� experience in this area.
While we have repeatedly recognized that, in nonselection cases, pretext
may be found where complainant's qualifications are demonstrably superior
to those of the selectee, Hickman v. Department of Justice, EEOC Appeal
No. 01A11797 (Dec. 20, 2001) (citing Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981)), we have also recognized that an employer has the
discretion to choose among equally qualified candidates. Id. (citing
Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981)).
Additionally, an employer has greater discretion when filling management
level or specialized positions. Id. (citing Wrenn v. Gould, 808 F.2d
493, 502 (6th Cir. 1987)). Complainant has not presented any evidence
which shows either that her Resident Agency experience is demonstrably
superior to that of the selectee, or that the agency's selection decision
is not entitled to the deference it is normally accorded in filling a
management-level position such as the SSA position at issue.
We next address complainant's challenge to the agency's rejection of her
submission of two reports which contained statistical evidence regarding
the level of representation of females at the agency in higher-level
and management positions. While statistical evidence can be relevant
in claims of individual disparate treatment, statistics alone will not
be sufficient to prove pretext. Stevens v. Equal Employment Opportunity
Comm'n, EEOC Appeal No. 01970848 (Aug. 14, 1997). Complainant presented
the subject reports to the Commission on appeal, and our review of these
documents shows that they lend little support to her claim. Even if we
were to admit complainant's statistical evidence into the record, she
would nevertheless fail to establish that the agency's articulated reasons
for her nonselection are mere pretext for unlawful sex discrimination.
For the aforementioned reasons, we find that complainant failed to meet
her ultimate burden of persuading the trier of fact that she was subjected
to unlawful sex discrimination as claimed. 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, it is the decision of the Commission to
AFFIRM the agency's FAD.
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 (S0900)
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
October 16, 2002
Date