0120101769
08-17-2010
Iris Roberts, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (U.S. Coast Guard), Agency.
Iris Roberts,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(U.S. Coast Guard),
Agency.
Appeal No. 0120101769
Hearing No. 430-2008-00324X
Agency No. HS-07-USCG-002520-CHFINC
DECISION
On March 22, 2010, Complainant filed an appeal from the Agency's March 1, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-0343-11 at the Agency's United States Coast Guard Finance Center located in Chesapeake, Virginia. Complainant's Affidavit at 1. In April 2007, the Agency posted two Systems Account vacancies at the GS levels 9, 11, and 12. Report of Investigation (ROI) at 98-115. A three person interview panel was formed consisting of the Selecting Official, Panel Member 1 and Panel Member 2. ROI at 60. Complainant applied only at the GS-12 level. ROI at 129. Complainant was found eligible and was referred for consideration at the GS-12 level certificate. Id. at 125.
Complainant filed an EEO complaint dated October 8, 2007, alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity under Title VII when: in July 2007, Complainant was not selected for the position of Systems Accountant (Vacancy Announcement No. 07-799-SENG-D1).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on December 1 and 2, 2009. The AJ issued a decision on February 12, 2010, finding Complainant failed to prove that she was subjected to discrimination as alleged.
The Agency subsequently issued a final order on March 1, 2010. The Agency fully implemented the AJ's finding no discrimination.
On appeal, Complainant argues the Agency excluded her from competing for the two Systems Accountant vacancies by manipulating the selection process. Complainant argues the Selecting Official and Panel Member 1, conspired together to exclude Complainant from the selection process. Specifically, Complainant notes the position was announced at the GS-9, GS-11, and GS-12 grade levels, but states consideration was limited only to GS-9 candidates in an attempt to keep her from being considered for the position. Complainant notes one of the selectees was hired at the GS-12 level. Complainant alleges the Agency's explanations for why it limited the selection process to only considering GS-9 candidates were false.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S.Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).
After a careful review of the record, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. In the present case, the Agency stated Complainant was not considered for the Systems Account position since it only interviewed candidates from the GS-9 certificate, which did not include Complainant, who applied only at the GS-12 level. Upon review, we find Complainant failed to show that the Agency's decision to interview only from the GS-9 certificate was motivated by unlawful discrimination.
We recognize that one of the two selectees was not hired at the GS-9 level, but rather was hired at the GS-12 level. However, the record reveals that this selectee applied at the GS-9, GS-11, and GS-12 grade levels and was found qualified at all three grade levels. This selectee was interviewed along with the other GS-9 candidates. The record reveals that although this selectee was interviewed for the GS-9 position, the Agency subsequently offered him the position at the GS-11 level due to his advanced technical skills set. Hearing Transcript at 424. After receiving the job offer at the GS-11 level, the selectee contacted Human Resources and asked whether his salary could be matched. The Agency agreed to match his salary and he was offered and accepted the position at the GS-12 level. We find Complainant has failed to show that the Agency's actions were a pretext for unlawful discrimination.
CONCLUSION
Accordingly, the Agency's final order finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 17, 2010
__________________
Date
2
0120101769
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101769