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