01996257
01-31-2002
Joyce Nesbitt-Simon v. General Services Administration
01996257
01-31-02
.
Joyce Nesbitt-Simon,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01996257
Agency No. GSA98R9PBSJN23
DECISION
INTRODUCTION
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has established by
preponderant evidence that she was discriminated against on the bases of
race (African-American) and sex (female) when: (1) she was not selected
for a Physical Security Supervisor position under Vacancy Announcement
No. 9890164; (2) her performance evaluation was written inaccurately and
did not correctly identify her skills, abilities and achievements relevant
to her position; (3) she was denied training pertinent to her job; and
(4) she was not given the same opportunities as similarly situated
male co-workers such as inclusion in office meetings, attendance of
work-related seminars, and denial of access to work-related information.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Physical Security Specialist (PSS) at the agency's facility in Los
Angeles, California. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on July 2, 1998. 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. Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
her claim of discrimination. The agency determined that complainant
established a prima facie case of sex and race discrimination as to claim
(1), however, not as to claims (2), (3), and (4). Assuming arguendo
that complainant had established her prima facie cases, the agency
determined that she failed to show that the agency discriminated against
her as alleged.
On appeal, complainant contends that the agency's investigation was
inadequate and that the record clearly shows that she was a victim of
discrimination. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming that complainant has established her prima facie cases
of discrimination, we turn to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. Upon review, we find that
the agency has met its burden. As for the non-selection raised in
claim (1), the record indicates that complainant was one of three
candidates certified as qualified. Complainant was interviewed for
the position but was not selected in favor of the selectee (Selectee).
The selecting official was complainant's Second-line Supervisor.
He and the Pacific District Director (Director) interviewed and ranked
the three certified candidates. Based on the knowledge, skills, and
abilities listed on the vacancy announcement, the position description,
the candidates' applications, and interviews, the Second-line Supervisor
and the Director ranked the candidates. They both determined that the
Selectee was the top-rated candidate based on his forty years of federal
and military work experience, leadership and management skills, and team
building background. The Approving Official stated that he relied upon
the Second-line Supervisor's and Director's opinions. In addition, the
Approving Official reviewed the applications and he was impressed with
the Selectee's experiences and background in law enforcement and security.
In claim (2), complainant alleged that her performance evaluation dated
March 31, 1998, was inaccurate and did not correctly identify the relevant
skills, abilities, and achievements. The Second-line Supervisor was the
rating official. Complainant was rated as �Successful� on each of the
five critical elements on the overall summary rating.<1> The Second-line
Supervisor averred that he used the guidelines for making his ratings and
provided an accurate appraisal. As to claim (3) in which complainant
raised concern over the denial of training, the Second-line Supervisor
stated that based on the agency's guidelines, complainant's request
for a Business Writing/English class and a Health class were denied.
In particular, he found that funds were restricted as to non-government
course attendance and the courses complainant selected were not directly
related to her job responsibilities.
Finally, complainant alleged in claim (4) that she was not given the same
opportunities as similarly situated male co-workers. The Second-line
Supervisor averred that complainant was not intentionally excluded from
any meetings. As to one meeting, the Second-line Supervisor indicated
that it was a �spur of the moment� meeting that just started with those
who were present in the room. As to the e-mails complainant claims she
never received, the Second-line Supervisor stated that complainant was not
omitted, and any omission was unintentional. Finally, as to attending a
camera demonstration, complainant alleged that other PSS employees were
allowed to attend while she was not. The record indicates that those PSS
employee invited included a PSS employee from Arizona, the Second-line
Supervisor and the PSS Supervisor. The Second-line Supervisor stated
that the equipment being demonstrated was to be installed in the Arizona
facility, therefore, it was necessary for the PSS employee from Arizona
to attend. The Second-line Supervisor indicated that the PSS employees
were invited based on workload or on similar needs for the demonstration.
Finding that the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to complainant to demonstrate that
the agency's reasons were pretext for discrimination. As to claim (1),
complainant provided statements from co-workers and her first-line
supervisor who indicated that complainant should have been selected.
We note however, that these individuals did not review all the
applications and do not establish that the agency's reason for its
selection was pretext. Complainant also alleged that the Selectee
was pre-selected. Upon review of the record, we find that complainant
fails to provide any evidence that the agency pre-selected the Selectee
in a discriminatory manner.<2> As to the remaining claims (2)-(4),
complainant merely alleges that she was a victim of discrimination.
We find that complainant failed to demonstrate that her sex and/or race
played any role in these matters. Accordingly, we find that complainant
has not demonstrated that the agency's reasons were pretext.
CONCLUSION
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
___01-31-02_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record indicates that there are only two ratings, �Successful�
and �Unacceptable.�
2 We note that while evidence of pre-selection or favoritism may act
to discredit an agency's explanation for its selection, pre-selection
does not violate Title VII when it is based on the qualifications of the
selectee and not some basis prohibited by Title VII. Goostree v. State
of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). In the instant matter,
complainant offered no persuasive evidence that pre-selection, if it
occurred, was based on discriminatory animus.