Jessyl A. Woods, Complainant,v.Mel R. Martinez, Secretary, Department of Housing and Urban Development, (Office of Fair Housing and Equal Opportunity), Agency.

Equal Employment Opportunity CommissionDec 27, 2001
01995629 (E.E.O.C. Dec. 27, 2001)

01995629

12-27-2001

Jessyl A. Woods, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, (Office of Fair Housing and Equal Opportunity), Agency.


Jessyl A. Woods v. Department of Housing and Urban Development

01995629

December 27, 2001

.

Jessyl A. Woods,

Complainant,

v.

Mel R. Martinez,

Secretary,

Department of Housing and Urban Development,

(Office of Fair Housing and Equal Opportunity),

Agency.

Appeal No. 01995629

Agency No. FW9723

DECISION

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., and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleged that she was discriminated against on the bases of her race

(Black), sex (female), age (DOB 5/29/52), and reprisal for prior EEO

protected activity (filing prior EEO complaints) when her selection for

the position of Equal Opportunity Specialist, GS-360/9/11/12, was revoked.

The record reveals that during the relevant time, complainant was employed

as an Equal Opportunity Assistant at the agency's Program Operations

Division in Fort Worth, Texas. Complainant applied for the Equal

Opportunity Specialist, GS-360/9/11/12, position in the Intake Division,

and was placed on the Best Qualified list. On September 12, 1996,

complainant was informed by an individual in Human Resources (HR) that

she was selected for the position, and she verbally accepted the offer.

However, on September 13, 1996, she received another call from the same

individual who told her that there had been a mistake, and she should

never have been placed on the Best Qualified list. The specific stated

reason for this was that she had not met the time-in-grade requirements

because she had not been a grade 7 for a full year. A Black male was

subsequently selected for the position. Believing she was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed a formal complaint on January 22, 1997. 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. When complainant failed to respond within the

time period specified in 29 C.F.R. � 1614.108(f), the agency issued a

final decision.

In its FAD, the agency concluded that complainant established a prima

facie case of race, sex and reprisal discrimination. The FAD found

no prima facie case of age discrimination because complainant had not

demonstrated that a similarly-situated, younger employee had been treated

preferably, nor had she demonstrated how her age had factored into the

nonselection decision.

On appeal, complainant restates arguments previously made, including a

claim that she was humiliated in front of her co-workers when the offer

was revoked. Complainant additionally contends, among other arguments,

that the position announcement contained no mention of time-in-grade

requirements. The agency requests that we affirm its FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)

(requiring a showing that age was a determinative factor, in the sense

that "but for" age, complainant would not have been subject to the adverse

action at issue); and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st

Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission

finds that even assuming that complainant established a prima facie case

of discrimination on all bases, the agency has articulated a legitimate,

nondiscriminatory reason for revoking the selection of complainant and

complainant has failed to establish pretext.

The management officials consistently state in their affidavits that

complainant's selection had to be revoked because she had not satisfied

the time-in-grade requirement, and she should never have been placed

on the Best Qualified list to begin with. HR further explained that

if the oversight had not been discovered until after complainant had

begun in the new position, she would have had to relinquish the position

upon discovery of the error. The selecting official (SO) asserted that

he was disturbed when Human Resources informed him of the oversight,

and that complainant's first-line supervisor (S1) and her second-line

supervisor (S2) were also disappointed. We note that complainant

does not dispute that she had not been a grade 7 for a full year at

the time of the relevant events. She does, however, contend that had

it not been for the agency's refusal to perform a desk audit when she

requested one in July 1993, and the agency's subsequent reorganization,

she would have been a GS-7 and within grade for over one year at the

time of the relevant events.

In an effort to establish that the agency's reason is pretextual,

complainant points to statements made by a Contracts Specialist (CS).

Specifically, CS states in her affidavit that (S1) approached the

individual who was to be complainant's new supervisor (NS), and told

him that he should reconsider the selection of complainant because she

is not a very good employee. Both NS and S1, however, deny that such

a discussion ever took place.

Further, in an effort to establish discriminatory animus, complainant

articulates her belief that S1 has a problem with Black females, and

CS echoes this belief. CS provides, as an example, the fact that S1

often says �good morning� to the White females, but will not speak to

the Black females. However, we note that despite the fact that she

is a Black female, CS admits that her relationship with S1 is cordial.

A co-worker of complainant stated that S1 told him that as long as he

hangs out around certain people (which he interpreted to mean complainant)

he would continue to get undesirable ratings. Several of the witnesses

admitted that complainant and S1 have a troubled working relationship, and

that S1 seems to treat complainant disparately. The selecting official

(SO), however, states that neither S1 nor S2 ever implied or expressly

stated to him that complainant should not be selected for any reason.

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. Specifically, we are not persuaded

by a preponderance of the evidence that complainant's age, sex, race

of prior EEO activity were considerations in the agency's decision to

revoke her selection for the position in question. In this regard,

we note that the challenged action was initiated by HR and there is no

evidence that either S1 or S2 influenced HR's determination that the

time-in-grade requirement applied.

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

December 27, 2001

__________________

Date