01a12496
07-11-2002
Inez C. Jordan, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Inez C. Jordan v. Department of the Treasury
01A12496
July 11, 2002
.
Inez C. Jordan,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A12496
Agency No. 981360
DECISION
Inez C. Jordan (complainant) timely initiated an appeal from a 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. For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as an Auditor at the agency's Office of Inspector General in Washington,
D.C. Complainant sought EEO counseling and subsequently filed a formal
complaint on July 31, 1998, alleging that she was discriminated against
on the bases of race (African-American) and color (Black) when she
was not selected for the position of Auditor, GS-511-13, under Vacancy
Announcement OIG-97-037A.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or,
alternatively, to receive a final decision by the agency. Complainant
requested a hearing, but subsequently withdrew this request. The agency
therefore issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination. In so finding, the agency noted
that the subject matter expert (SME) who reviewed the applicants'
qualifications and ranked them for the best-qualified list had
no knowledge of the race or color of any of the applicants. SME,
who ranked and rated complainant in comparison with the other GS-13
(lateral) candidates, gave complainant a score of 35. The three lateral
candidates who made the best-qualified list received scores of 50 or
higher. The agency official who determined the cut-off for making the
best-qualified list for lateral candidates (AO) noted that she did so
based on the clear breaking point between the three applicants ranked
highest, who received scores in the 50s, and the remaining candidates,
who received scores in the 30s.
The agency went on to find that even assuming complainant established
a prima facie case of discrimination, she failed to establish
that the agency's explanation for its selection was a pretext for
discrimination. The agency noted that SME rated and ranked candidates
based on their applications and the ranking factors which appeared in
the vacancy announcement. Management officials testified that these
ranking factors were based on the fact that the agency was seeking a
candidate who had �strong assets� in the Financial Management Service
(FMS) program, particularly in the Electronic Benefits Transfer and
Electronic Funds Transfer areas. The agency noted that the selectee
had a higher level of experience in these areas than did complainant.
The agency concluded that complainant failed to establish that she was
subjected to discrimination.
After a careful review of the record, and applying the standards set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
Commission finds that complainant failed to prove by a preponderance of
the evidence that she was discriminated against. In so finding, we note
that even assuming complainant established a prima facie case, she failed
to establish that the agency's explanation for the selection was a pretext
for discrimination. SME testified that he ranked the applicants based on
their applications as compared to the qualifications listed in the vacancy
announcement and that based on complainant's relevant qualifications, he
gave her a score of 35.<1> AO testified that because a score of 50 was
the clear breaking point between the highest-ranked lateral applicants
and the remaining lateral applicants, no lateral applicant with a score
less than 50 made the best-qualified list. The selecting officials
testified that the selectee was chosen based on her experience in the
FMS program and that, as complainant was not on the best-qualified list,
she was not considered.
In arguing that this explanation was a pretext for discrimination,
complainant contended that the selectee was pre-selected, noting that the
criteria on the vacancy announcement were overly specific and limited
the number of qualified applicants. In support of this argument, she
submitted a copy of a vacancy announcement for a similar position which
does not include the requirement of FMS experience. We note, however,
that management officials stated that in filling this particular vacancy
they were looking for an individual with a good deal of experience
in the FMS program and therefore included such qualifications in the
announcement. Complainant provided no evidence to indicate that this
explanation is untrue or a pretext for discrimination.
Finally, after a careful review of the record, we find that complainant's
argument that the investigation was incomplete is without merit. The
relevant management officials were interviewed and provided explanations
for their actions relevant to this complaint. Complainant did not
indicate what information would have been obtained had other witnesses
been interviewed, nor did she specify how this information would have
established that the selection at issue was discriminatory.
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, we affirm the 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
July 11, 2002
Date
1 SME also testified, without rebuttal, that he was unaware of the race
or color of any of the applicants when he rated and ranked them, which
raises doubt as to whether complainant provided even enough evidence
to raise an inference of discrimination. However, because AO, who was
aware of complainant's race and color, made the ultimate determination
as to who would be placed on the best-qualified list, we have assumed
that complainant established a prima facie case.