Gloria L. Siegel, Appellant,v.Daniel Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01976378 (E.E.O.C. Oct. 14, 1999)

01976378

10-14-1999

Gloria L. Siegel, Appellant, v. Daniel Glickman, Secretary, Department of Agriculture, Agency.


Gloria L. Siegel v. Department of Agriculture

01976378

October 14, 1999

Gloria L. Siegel, )

Appellant, )

) Appeal No. 01976378

v. ) Agency No. 941007

)

Daniel Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

________________________________)

DECISION

On August 14, 1997, Gloria L. Siegel (hereinafter referred to as

appellant) initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from a final decision of the agency concerning

her complaint of discrimination in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The final agency

decision was dated June 30, 1997. The agency failed to submit a postal

return receipt or other evidence that would show when appellant received

the final agency decision. Accordingly, the appeal is deemed to have

been timely filed, and is accepted in accordance with the provisions of

EEOC Order No. 960, as amended.

The issue on appeal is whether appellant proved, by a preponderance of

the evidence, that she was discriminated against on the basis of her sex

(female) when she was nonselected for the position of Computer Specialist,

GS-334-13, in May 1994.

Appellant filed a formal EEO complaint in October 1994, raising the

above-referenced allegation of discrimination. The agency accepted

appellant's complaint for processing, and conducted an investigation.

Thereafter, the agency provided appellant with a copy of the investigative

report, and notified her of her right to either an administrative hearing

or a final agency decision in the matter. Appellant failed to timely

respond to the notice, and the agency issued a final decision dated June

30, 1997, finding that appellant had not been subjected to discrimination

on the basis of her sex. It is from this decision that appellant now

appeals.

A review of the record reveals that appellant, a GS-12 Computer

Specialist, applied for the position at issue in April 1994. The vacancy

announcement indicated that the person selected would serve as the

Database Administrator for the payroll/personnel databases, as well as the

technical authority on database analysis, production database support, and

quality assurance. Five candidates, including appellant, were forwarded

to the Chief of the Database Management Branch (Selecting Official) on

the Best Qualified List and interviewed for the position. Ultimately,

another candidate (male; Selectee) was chosen for the position.

The Selecting Official and the Section Head stated that the Selectee

exhibited a mastery of the areas and skills required for the position.

They cited his skills in Database Administration, knowledge of

payroll and personnel systems, and experience as a project leader.

The Selecting Official and the Section Head noted that the Selectee's

answers to interview questions were far better than those of the

other candidates and included specific references to his experience

with payroll and personnel. Appellant's answers, on the other hand,

referenced experience with a system not required for the position.

Both individuals opined that all but one of the candidates, including

appellant, would have been able to perform the functions of the position.

They stated, however, that the Selectee was the outstanding candidate.

Appellant's complaint presents the issue of whether the agency subjected

her to disparate treatment on the basis of her sex. McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), provides an analytical framework for

proving employment discrimination in cases in which disparate treatment

is alleged. First, appellant must establish a prima facie case by

presenting enough evidence to raise an inference of discrimination.

McDonnell Douglas, supra, at 802. The agency may rebut appellant's

prima facie case by articulating legitimate, nondiscriminatory reasons

for its action, and if the agency does so, appellant must show, by a

preponderance of the evidence, that the agency's reasons are a pretext

for discrimination. Id.

The Commission notes that the McDonnell Douglas analysis need not

be adhered to in all cases. In appropriate circumstances, when the

agency has established legitimate, nondiscriminatory reasons for its

employment decision, the trier of fact may dispense with the prima

facie inquiry and proceed to the ultimate stage of the analysis,

that is, whether the complainant has proven by preponderant evidence

that the agency's explanations were a pretext for actions motivated

by prohibited discriminatory animus. See United States Postal Service

Board of Governors v. Aikens, 460 U.S. 711 (1983). Given that the agency

acknowledged, in its final decision, that appellant established a prima

facie case of discrimination, we will proceed with this analysis.

The agency stated that while appellant was qualified for the position,

the Selectee's qualifications were superior. Appellant asserted that

she had more years of experience at the agency, including experience

as a project leader, than the Selectee. Years of experience, however,

do not necessarily make an individual more qualified to meet the needs

of an organization. A review of the record reveals that appellant and

the Selectee had similar qualifications, including receiving "superior"

performance evaluations. Although appellant's application was impressive,

she has not shown that her qualifications were so superior to those of

the Selectee that the agency's articulated reasons must be discounted

as mere pretext. Finally, while appellant asserted that the Selectee

was preselected for the position, preselection alone is insufficient to

establish pretext. Appellant has presented no evidence which would cause

the Commission to discredit the agency's stated reasons for its action,

or to conclude, for other reasons, that appellant's sex was the true

basis for the agency's actions. Therefore, the Commission finds that

appellant failed to prove, by a preponderance of the evidence, that she

was subjected to sex discrimination with regard to her nonselection for

the position in question.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it is

the decision of the Commission to affirm the agency's final decision of

no discrimination based on sex.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 this

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. �l6l4.604(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 this 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 this 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 this 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:

Oct. 14, 1999

DATE Carlton M. Hadden

Acting Director

Office of Federal Operations