Jean Williams, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 20, 2009
0120080964 (E.E.O.C. Aug. 20, 2009)

0120080964

08-20-2009

Jean Williams, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Jean Williams,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120080964

Agency No. ARRRAD06OCT04230

DECISION

On December 10, 2007, complainant filed an appeal from the agency's

November 15, 2007 final decision 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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Resource Management Analyst at the agency's Red River Army Depot

facility in Texarkana, Texas.

On January 30, 2007, complainant filed an EEO complaint alleging that

she was discriminated against on the bases of race (Black), sex (female),

and reprisal for prior protected EEO activity under Title VII when:

1. she was not selected for either of two Lead Budget Analyst,

GS-0560-12 positions on August 12, 2006; and

2. she was not selected for either of two GS-0560-11 Budget Analyst

positions on November 6, 2006.

The record reflects the following circumstances: Complainant applied

for consideration for the two Lead Budget positions, and was referred

to the interview panel on June 12, 2006. Complainant engaged in recent

prior EEO activity and the selecting official was aware of complainant's

prior EEO activity. The selecting official developed the rating criteria

to be used by the panel for evaluating the candidates for interview. The

panel was not aware of complainant's prior EEO activity or the candidates'

race or sex. The interview panel was given resumes with the applicants'

names and other identifying information blacked out, although one of

the panelists surmised which one was complainant's application. After

evaluating the candidates, the panel interviewed only the highest-rated

candidates. A white male and a white female were selected. Complainant's

rating was not among the highest-rated candidates, and complainant was

not interviewed or selected.

With regard to the GS-11 Budget Analyst positions, complainant was

recommended for consideration and was rated the second-highest-rated

candidate. The agency selected the first-highest-rated candidate and

the third-highest-rated candidate. The third-highest-rated candidate

received favorable comments from her supervisor and was of the same

race and sex as complainant. The selecting official relied on her

own impressions and the negative comments received from complainant's

supervisor. Complainant acknowledged some performance deficiencies, but

stated that the supervisor's comments about her performance were untrue.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). In accordance with

complainant's request, the agency issued a final decision pursuant to

29 C.F.R. � 1614.110(b). The decision concluded that complainant failed

to prove that she was subjected to discrimination as alleged.

Neither party submitted a brief in support or in response to this appeal.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

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, because the agency has articulated

legitimate, non-discriminatory reasons for its conduct. See United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);

Holley v. Department 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, 143 (2000); Texas Department of Community Affairs

v. Burdine, 450 U.S. 248, 256 (1981).

After a careful review of the record, we find the agency was correct

in its finding of no discrimination. The record supports the agency's

reasons - that the agency selected the persons whom the agency deemed

the most qualified and who had not received negative comments -

and complainant did not provide sufficient evidence to show that the

agency's proffered reasons more likely than not were a pretext for

unlawful discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 tends 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 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 (S0408)

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 (Z1008)

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 20, 2009

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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