01a51549
03-28-2006
Joyce Brannon-Winters, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Joyce Brannon-Winters v. Department of the Navy
01A51549
March 28, 2006
.
Joyce Brannon-Winters,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A51549
Agency No. DON-03-65886-022
Hearing No. 150-2004-00272X-TGH
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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 order.
The record reveals that complainant, an Industrial Engineer, GS-0896-12,
at the agency's Naval Air Depot facility in Jacksonville, Florida,
filed a formal EEO complaint on April 15, 2003, alleging that the agency
discriminated against her on the basis of sex (female) when in January
2003, it did not select her for promotion to the Supervisory General
Engineer, GS-0801-13, position.<0>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a bench
decision finding no discrimination on September 21, 2004.
The AJ concluded that complainant established a prima facie case of sex
discrimination because she had shown that the selectee to the position
was male. However, the AJ also found that the agency rebutted the prima
facie case with evidence showing that the selectee had greater, more
recent engineering experience in relevant areas and a more impressive
resume. Having set forth a non-discriminatory explanation for not
selecting complainant, the burden fell upon complainant to prove by
a preponderance of the evidence that the agency's explanation was
pretextual. The AJ found she had not met this burden. According to
the AJ, complainant failed to show that she had as relevant and direct
engineering experience as the selectee. He also found credible the
testimony of several selection board members who indicated that the
selectee's resume was more direct and persuasive than complainant's.
The AJ further determined that, although the record provides some support
for complainant's position that male employees have greater promotional
opportunities than female employees at the facility, the evidence was
�far less overwhelming than the complainant suggests.... The fact that
[no women were promoted to the GS-13 level] is ... not strong enough
to carry her burden of proof.� AJ Decision at 13. The agency's final
order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred and that she is entitled
to a new hearing and remedies. Specifically, complainant argues that: (1)
an ex-parte communication that resulted in the AJ granting the agency an
extension of time harmed her case; (2) the AJ denied complainant's offer
of proof and other discovery requests, again causing harm to her case; (3)
the AJ abused his discretion in dismissing her prior non-selection claims
under National Railroad Passenger, Corp. v. Morgan, 536 U.S. 101 (2002);
(4) agency counsel used confidential information against complainant and
created a conflict of interest, and (5) the AJ improperly weighed the
evidence because he did not hear all of her information about the lack
of female professionals in grades 13 and above. The agency responded
to each argument raised on appeal.
Legal Analysis
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 credibility determination will also
be accepted unless documents or other objective evidence so contradict
the determination that a reasonable fact-finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 at Ch. 9, VI, B (Nov. 9, 1999). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing
was held. See id.
At the onset, we shall address some of complainant's contentions
on appeal. With regard to her claim of an improper ex parte exchange,
even if such a communication took place, we do not find that the resultant
extension of time to file a motion for a decision without a hearing harmed
complainant in any way. If anything, the extension was granted to both
parties, and it may have been beneficial to complainant had she filed
a motion. We note that neither party filed such a motion; therefore, no
harm arose. With regard to her contention that the denial of her request
for an offer of proof was prejudicial, we disagree. An AJ is afforded
broad discretion in the conduct of the hearing and related proceedings.
See 29 C.F.R. � 1614.109. The AJ has the authority to limit or exclude
irrelevant evidence. Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, Ch. 7, III, D (Nov. 9, 1999). Having reviewed
the record, we agree that the requested information would have been
immaterial to the case at issue; therefore, the exclusion was proper.
With regard to her contention that the AJ improperly applied Morgan,
again, we disagree. According to Morgan, a failure to hire is a
discrete act; therefore, all of complainant's claims were discrete acts.
The Commission has interpreted the Morgan holding to require federal
sector complainants to raise such acts to an EEO Counselor within 45
days of their occurrence. We have explained that �[i]ndividual discrete
acts that occurred before the filing period will generally be untimely
- and therefore not actionable. Nonetheless, these untimely discrete
discriminatory acts may be considered as background evidence if they are
relevant to the determination of whether acts taken inside the filing
period were discriminatory.� EEOC Compliance Manual on Threshold Issues,
No. 915.003, at � 2-IV.C.1.a (rev. July 2005). As we ultimately find
that the timely 2003 non-selection claim was not discriminatory, the
prior non-selections are irrelevant. Thus, the AJ properly applied
Morgan to the case.
Lastly, with regard to complainant's contention that her contact with the
agency's counsel raised a conflict of interest, we find the argument has
no merit. Complainant states that the agency attorney misled her as to
her EEO rights, and because of this misinformation, she failed to raise
her claims in a timely manner. Having reviewed complainant's argument,
we find nothing suspect or unlawful about the exchange she had with the
agency attorney. The attorney properly counseled complainant that if
complainant believed she had been discriminated against by management's
actions, she should pursue an EEO complaint. See Appeal at 7. This is
proper advice, which complainant decided not to follow. Complainant
suggests that the agency attorney had some sort of legal obligation
to counsel her. Complainant is mistaken. As an agency attorney, the
attorney's only �client� is the agency. Even so, and although it was not
her duty to do so, the attorney gave complainant legally sound advice.
The attorney did not misinform or mislead complainant in any way.
Complainant's final contention on appeal is that the AJ improperly weighed
the evidence. Again, we point out that the AJ's role at a hearing
is that of the trier of fact. He has broad discretion in the conduct
of the hearing and his duty is to weigh the evidence. We discuss the
specific exclusion of complainant's proffered statistical evidence below.
See Disparate Impact analysis, infra.
Disparate Treatment
As complainant does not have direct evidence of discrimination, we
must examine her claim under the three part analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this
analysis, complainant initially must establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See St
Mary's Honor Cntr. v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. at 802. Next, in response, the
agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas,
411 U.S. at 802. Finally, it is complainant's burden to demonstrate by
a preponderance of the evidence that the agency's action was based on
prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for
discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53;
McDonnell Douglas, 411 U.S. at 804.
We agree with the AJ's finding that complainant established a prima
facie case of sex discrimination. Now, we turn to whether the agency
articulated a legitimate, non-discriminatory reason for not selecting
complainant to the position. Again, the record supports the AJ's
conclusion that the agency met its burden. We remind complainant that
the agency's burden in providing a non-discriminatory reason is one of
production of evidence, not of persuasion. The agency's explanation
need only be legally sufficient to justify a judgment for the agency.
See Burdine, 450 U.S. at 253.
In contrast, the burden of persuasion remains on complainant at all times.
In a non-selection case, complainant may establish that the agency's
explanation is pretextual with a showing that her qualifications were
plainly superior to those of the selectee. See Burchfield v. Dep't of
Treasury, EEOC Appeal Nos. 01970152, 01941579 (Apr. 6, 2000); see also
Cofield v. Godlkist, Inc., 267 F3d. 1264, 1268 (11th Cir. 2001) (stating
that the disparity in qualifications must be �so apparent as virtually to
jump off the page and slap you in the face.� (citation omitted)). Both
the Commission and federal courts find that an employer has discretion to
choose among equally qualified candidates. See Brown v. Dep't of Army,
EEOC Appeal No. 01970189 (Feb. 25, 2000); Canham v. Oberlin College,
666 F.2d 1057, 1061 (6th Cir. 1981), cert. denied, 456 U.S. 977 (1982).
Employers have even greater discretion when filling specialized positions.
See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). While the use
of subjectivity in making a job placement decision may seem to offer
a convenient pretext for unlawful discrimination, we have consistently
acknowledged that choosing an appropriate candidate for a specialized
position necessarily involves making a decision based on subjective
criteria. Thus, we do not find that the use of such criteria is, in
and of itself, an indicator of discriminatory motivation as complainant
would have us find. See Podale v. Dep't of Health & Human Servs., EEOC
Request No. 05960344 (Oct. 16, 1998). Wilson v. U.S. Postal Serv.,
EEOC Request No. 05921062 (Aug. 12, 1993).
Complainant did not establish that she was a superior candidate to
the selectee. Having reviewed their respective resumes, we find that
complainant's qualifications were at most comparable to the selectee's.
Moreover, the position of Supervisory General Engineer is a specialized
professional position; therefore, the subjectivity involved in making
the final selection was appropriate. The core of complainant's argument
is her disagreement with the selection board's final conclusion and
evaluation of her. However, this is insufficient to prove pretext.
Absent evidence of distinctly superior qualifications, we concur with
the AJ that both complainant and the selectee were well qualified for the
position at issue, but that the selectee simply out-shined complainant.
We have repeatedly recognized that the agency has broad discretion
to set policies and carry out personnel decisions and should not be
second-guessed by the reviewing authority absent evidence of suspect
motivation. See Burdine, 450 U.S.at 259; see also Andre v. Dep't of
Defense, EEOC Appeal No. 01994562 (Feb. 22, 2002). We simply do not have
the authority nor the capacity to stand as the super-personnel department
for the Navy. We do not find any evidence that the selection decision
here was any way suspect.
Disparate Impact
Although the AJ did not view the complaint as such, we find that it
also raises a disparate impact claim. Complainant presented statistics
at the hearing to show a disparity exists between male engineers and
female engineers at the agency above a GS-12 level. Nevertheless, upon
review of the evidence, we still agree with the AJ's final conclusion
that complainant failed to successfully prove her case.
The theory of a disparate impact claim is that it shows that a facially
neutral employment policy or practice has a disparate impact on a
protected group. To establish a disparate impact case complainant must
show, by a preponderance of the evidence, that an agency practice,
while neutral on its face, disproportionately impacted members of
her protected class. Complainant usually accomplishes this task by
presenting statistical evidence that shows the disparity is linked to
the challenged practice. See Watson v. Fort Worth Bank & Trust, 487
U.S. 977, 994 (1988). The alleged impact must be more than the result of
"isolated, accidental or sporadic discriminatory acts." Komp v. Dep't of
Housing & Urban Dev., EEOC Appeal No. 01831271 (Aug. 18, 1983). It is
not necessary for complainant to prove discriminatory intent. Thus,
to establish a prima facie case of sex discrimination under a disparate
impact theory, complainant must: (1) identify the specific practice
or practices challenged; (2) show statistical disparities; and (3)
show that the disparity is linked to the challenged practice or policy.
See Watson, 487 U.S. at 994. The burden is on complainant to show that
"the facially neutral standard in question affects those individuals
[within the protected group] in a significantly discriminatory pattern."
Dothard v. Rawlinson, 433 U.S. 321, 329 (1977).
We do not find that complainant established a prima facie case
of disparate impact. Although there is an under-representation of
professional female engineers over grade 12 at the agency and complainant
arguably identified a specific practice that is discriminatory � namely,
that agency's hiring process gives male applicants an advantage over
female applicants � we agree with the AJ that the statistics she
presented to link the disparity to the challenged practice are weak.
A witness for complainant provided demographic information obtained from
the Office of Personnel Management on the relative proportion of women in
the engineering workforce. See Hearing Tr., vol 1, at 118-55. The AJ
considered this evidence but ultimately discounted it finding that it
was too inconsistent for him to make a finding of discrimination. See AJ
Decision at 9-10. Having reviewed the record, we agree that complainant's
statistics do not point out that the alleged discriminatory practice
caused the disproportionate numbers of women in upper level professional
engineering positions. What is clear is that out of the thirty-eight
GS-12 engineering positions at the agency, six were held by women, see
EEO Data, Ex.F-6, and that between December 31, 1998 and January 31,
2003, there were 16 or 17 promotions to the GS-13 level, all of which
went to men, see Promotion History, Ex. F-7. Although these numbers
may raise eyebrows, we agree with the AJ that it is too speculative
to base a finding of discrimination, particularly, as the AJ pointed
out, most of the promotions were temporary and/or based on seniority.
As the Supreme Court stated, complainant �does not make out a case if
disparate impact simply by showing that, �at bottom line,' there is [a
gender] imbalance in the workforce. As a general matter, a [complainant]
must demonstrate that it is the application of a specific or particular
employment practice that has created the disparate impact under attack.�
Wards Cove Packing Co v. Atonio, 490 U.S. 642, 657 (1988).
CONCLUSION
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.
Complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's sex.
We discern no basis to disturb the AJ's decision. 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 final order.
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:
March 28, 2006
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
0 1We note that in her complaint complainant
alleged that she was not selected to the same Supervisory General Engineer
position three previous times in December 1998, June 2001 and September
2001. The agency dismissed these claims for failure to contact an EEO
Counselor within 45 days of the incidents. In a pre-hearing conference
on August 4, 2004, the EEOC Administrative Judge assigned to this case
upheld the dismissal. See Hearing Tr., vol. 1, at 6:7-10.