01985719
05-03-2000
Jeanee Panoke, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Jeanee Panoke v. Department of the Treasury
01985719
May 3, 2000
Jeanee Panoke, )
Complainant, )
) Appeal Nos. 01985719
v. ) 01986572
) Agency No. TD-97-4263
Lawrence H. Summers, ) TD-98-4010
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
INTRODUCTION
Complainant filed two timely appeals with this Commission.<1> Both
appeals were from final agency decisions (FAD) concerning her complaints
of unlawful employment discrimination on the basis of sex (female)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. For the reasons stated herein, the agency's
FADs are affirmed.
ISSUE PRESENTED
The issue on appeal, for both complaints, is whether complainant
has established that the agency discriminated against her on the
above-referenced basis.
BACKGROUND
In both appeals, during the period in question, complainant was employed
as a Customs Inspector, GS-9, at a Washington state facility of the
agency. Believing she was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed two complaints alleging
that the agency discriminated against her based on sex (female) when it
did not select her for two Senior Customs Inspector, GS-11, positions.
Complainant stated that the agency's non-selections of her were
discriminatory because there was a trend among management of not hiring
or promoting females in the area of inspection. Complainant further
stated that the inspection area was admittedly stereotyped as a male
only occupation, however, the Selecting Official (the SO) had an adequate
opportunity during his seven year tenure to hire or promote females and
change that image. Complainant added that the SO only hired females
for inspection when there was a specific need to do so for conducting
pat down searches of female travelers.
The SO stated that complainant did not possess qualifications superior
to the selectee(s) in either complaint. He further indicated that
females were under-represented in the area of inspection because in
the past it was a male only occupation and continued to be viewed as a
nontraditional female line of work and because a higher percentage of
females transferred from the inspection area to other customs areas for
quality of life reasons. The SO affirmed that during the two years prior
to these complaints, he hired 37 individuals of which 17 were female and
he promoted 27 people of which 15 were female. The pertinent facts for
each appeal differed as follows.
01985719
In November 1996, complainant applied for a promotion to a GS-11, Senior
Customs Inspector position. Subsequently, the selection criteria for
the position was amended so complainant and all applicants for the
position were given an opportunity to submit amended applications,
which complainant did not do. A selection panel, which consisted of
three males, was convened to rate each candidate based on the amended
criteria. The panel reviewed 19 application packages and passed their
findings on to a staffing specialist who created a highly qualified list
containing 15 applicants, of which two were female. Complainant ranked
number 13 out of the 15 after a tiebreaker with a male who ranked twelfth
because of his occupational starting date. The one other female on the
list ranked fifteenth. Initially, it was unknown how many position
vacancies were available so all 15 individuals remained on the list.
Finally, it was discovered that there were seven vacancies available.
Complainant was not selected because she did not rank high enough on the
list. The policy was that only four individuals could be referred for
a vacancy with one additional person for each additional vacancy, which
meant that only the applicants who ranked between one and ten could have
been considered for the position. Thus, complainant was not considered.
Seven males were selected for the seven vacancies.
Regarding this complaint, complainant stated that a contributing factor
to the discrimination was the all male ranking panel. The agency
argued that a union representative signed the panelists' worksheets,
which indicated that the union was satisfied that the rating process
was conducted properly.
01986572
In 1997, complainant applied for a GS-11, Senior Customs Inspector
position. Complainant ranked number three out of five on a Best Qualified
list for the position. In February 1997, the SO selected a male who
had transferred to another facility six months earlier. Apparently,
the selectee contacted the SO and expressed the hardship his family
experienced with the relocation and asked to return. The selectee
originally transferred for a Port Director position, which appears to
be a position senior to the position at issue, and the selectee held a
Senior Customs Inspector position prior to his transfer.
The SO stated that the selectee was chosen for humanitarian reasons and
because he had proven skills and abilities, he had only recently left
the area, and he was still a member of the local union chapter<2>.
The SO added that his qualifications were superior to complainant's.
Complainant stated that the SO's reasons were pretextual because the
selectee did not qualify for the hardship transfer, his grade level
was not decreased as was the policy for incoming transfers, and the
percentage of females working in inspection was very low.
At the conclusion of each complaint's investigation, the agency notified
complainant of her right to a hearing before an EEOC administrative judge
or an immediate FAD without a hearing. The agency issued two FADs, both
of which found no discrimination based on sex. These appeals followed.
ANALYSIS AND FINDINGS
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. Id. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason for
its action, we may proceed directly to determining whether complainant
satisfied her burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
In both complaints, complainant's primary contentions were that females
were under-represented in inspector positions and that she was better
qualified than the selectees. Specifically, complainant stated that
when she filed her complaints, there were three females in the position
of senior customs inspector compared to the approximately 35 males in
the position and there was one female in the position of supervisory
inspector compared to the 10 males in the same position. Complainant
further stated that when she applied for the vacancies at issue, she
had four years of "well-rounded" experience as a Customs Inspector,
one year of experience as a Customs Inspectional Aid, an "Outstanding"
1996 performance appraisal, an "Excellent" appraisal for promotional
opportunities, and a significant amount of work-related recognition
and awards. Complainant specifically added, in reference to 01985719,
that the all male rating panel was a factor in the discrimination.
The SO stated that females were under-represented in inspector positions
because, in the past, it was a male only occupation and is still seen as
a non-traditional female line of work<3> and because a higher percentage
of females transferred from inspector positions to other job categories
within customs, typically for "quality of life" reasons.
The record did not reveal any objective statistical evidence regarding
the number of females who applied for positions in inspections, who were
denied such positions, or who transferred from such positions nor did it
reveal any objective evidence on the qualifications of female applicants,
other than complainant, compared to their male counterparts.
In 01985719, the record did reveal that complainant specifically
cited three of the seven selectees as less qualified than she. Of the
three cited selectees, one had three years of experience as a Customs
Inspector and three and a half years of customs-related experience in the
military, another had two years of experience as a Customs Inspector and
a Bachelor's degree in Criminal Justice, and the last had four years of
experience as a Customs Inspector and one year of experience as a Customs
Entry Aid. All three selectees had either an "Excellent" or "Outstanding"
1996 performance appraisal and appraisal for promotional opportunities, as
well as work-related awards. Although complainant may have been qualified
for the position at issue, the record does not support the conclusion that
she was better qualified than any of the seven selectees. The record
further revealed that the rating panel evaluated each candidate without
discussion, except to seek clarification on the evaluation criteria.
In addition, a union representative was present during the rating panel
and he certified that the rating process was conducted properly.
In 01986572, the record revealed that the selectee transferred to a Port
Director position at another facility of the agency but prior to his
transfer he was a Senior Customs Inspector at the facility at issue here.
The SO at issue here was selectee's supervisor prior to his transfer and
was familiar with his skills and abilities. For the vacancy at issue,
the SO had the option to choose one of the five best qualified applicants
under the Merit Promotion plan or the one possible reinstatement under
the Alternate Staffing plan. The SO stated that he chose the latter
because a reinstatement for humanitarian reasons could boost morale and
because the selectee had already proven himself to be a qualified senior
customs inspector.
The Commission can not second guess an employer's business decisions but
can focus only on an employer's motivation for such decisions. Burdine,
450 U.S. at 259. The Commission finds that complainant failed to present
evidence that more likely than not, the agency's articulated reasons for
its actions were a pretext for discrimination. 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 agency's finding of no discrimination
based on sex.
CONCLUSION
We AFFIRM the agency's findings of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
May 3, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
As allowed by 64 Fed. Reg. 37,644, 37,661 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.606) and in recognition of
complainant's request on appeal, appeal numbers 01985719 and 01986572
have been consolidated for joint processing and are addressed herein.
2The SO indicated that he conferred with several entities regarding the
best course of action for filling the position, including the union.
It was determined that alternative staffing was best.
3During the relevant time period, both females and males held inspector
positions; however, there is troubling evidence in the record that
historically males were inspectors and females were inspectresses, which
was a position with less duties and responsibilities than an inspector.