01981578
03-08-2000
K. Kimberly King, Complainant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.
K. Kimberly King v. United States Information Agency
01981578
December 8, 2000
.
K. Kimberly King,
Complainant,
v.
Joseph D. Duffey,
Director,
United States Information Agency,
Agency.
Appeal No. 01981578
Agency Nos. OCR-94-20; OCR-96-27
Hearing Nos. 100-95-7983X; 100-97-7485X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged in two
separate EEO complaints that she was discriminated against as follows:
(1) based on age (D.O.B. 12/19/49), sex (female), disability (alcoholism),
and retaliation (prior EEO activity) when she was not recommended for
promotion by the 1993 Promotion Board; and (2) based on retaliation
for the first complaint when, in February 1996, despite bidding on at
least five overseas assignments, she was placed in an "over-complement"
status in Washington, D.C. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that complainant, a Foreign Service Officer (Class
3), filed formal EEO complaints on April 26, 1994 and July 1, 1996,
alleging that the agency had discriminated against her as referenced
above. On March 24, 1997, complainant requested that the EEOC review her
complaints, and the agency subsequently forwarded the complaint files to
the Commission for a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination on any basis with respect to her 1993 non-selection,
and that even assuming complainant established a prima facie case
of discrimination on any basis, the agency's proffered explanation
for her referenced non-selections had not been shown to be a pretext
for discrimination. Specifically, the AJ found that with respect to
the 1993 promotion, between 100 and 200 foreign service officers were
considered for promotion from class 3 to class 2, and of that number, 29
were recommended for promotion. The AJ noted that while complainant was
"clearly qualified for promotion" and her "career progression stalled
at the FS-3 level," there were candidates from within and without her
protected classes among the 29 who were promoted and not promoted, and
while not dispositive, in these circumstances there was insufficient
evidence to permit an inference of discrimination on any basis.
In particular, the AJ noted that while at least one member of the 1993
promotion board was vaguely aware of complainant's medical history,
her knowledge was limited to a single incident 17 years earlier which
was reportedly alcohol-related.<2> While two other agency employees
also testified they had knowledge that complainant was a recovering
alcoholic, the AJ found complainant's contention that her career was
"shrouded by her reputation as a problem drinker" to be "at best, tenuous
and unpersuasive." Further, the AJ found that while complainant's 1992
Officer Evaluation Report (OER) noted that some embassy officers had
found complainant "too direct," this was insufficient to establish
discriminatory animus based on sex or retaliation, particularly in
the context of diplomatic employment, and also given that the OER
was nonetheless very positive. Moreover, complainant acknowledged
that another female whose OER described her as occasionally "coming on
'too strong'" was nonetheless promoted. Further, the AJ found that
evidence indicating promotion board members were disinclined to select
complainant because the "rated officer comments" she provided on her OERs
were viewed as "excessively harsh and confrontational" was insufficient
to establish discriminatory or retaliatory animus. With respect to her
1996 non-selection, the AJ found that while complainant established a
prima facie case of retaliation, she did not satisfy her ultimate burden
of proof to prove that her non-selection was in reprisal for her first
complaint. Specifically, the AJ found credible the agency's contention
that complainant was not selected in 1996 because she failed to follow
the advice of her promotion counselor to bundle her bids, and instead
engaged in a poor bidding strategy by bidding for particular positions
separately rather than concurrently.
On appeal, complainant contends, inter alia, that: (1) the AJ erred in
finding that the agency proffered a legitimate non-discriminatory reason
for her non-selections, in particular because evidence regarding the
bona fide procedures used by the 1993 promotion board does not explain
her non-selection in particular, the details of which the panel members
could not recall; (2) the 1993 promotion board's failure to recommend any
additional candidate for a 30th promotion slot which became available was
evidence of discriminatory intent against her; (3) the promotion board
member with knowledge of complainant's alcoholism should have recused
herself from deliberations regarding complainant, especially because her
deposition testimony revealed that she had allegedly false information
about complainant's 1976 alcohol-related incident, and further, this
member's initial refusal to give a statement to the EEO investigator
warranted an adverse inference; and (4) the AJ failed to apply properly
the indirect evidence method of proof.
In its opposition brief filed on appeal, the agency contends that
complainant improperly raises a new argument for the first time on appeal.
Specifically, the agency contends that complainant did not raise below
her contention that because she was qualified for promotion the board
was required to recommend her when it was advised of an additional
promotional opportunity, rather than leaving the slot vacant. The agency
further contends that even if this argument is considered on appeal,
it is without merit because complainant has not established she was more
qualified that the other candidates. Further, the agency asserts that
the AJ's finding that complainant was "clearly qualified" for promotion
is not inconsistent with her non-selection by the promotion board,
since all candidates considered by the promotion board were "qualified"
for promotion in that they were class 3 officers with at least two years
of service at that level. In her reply brief, complainant contends that
by not including her on the list of those recommended for promotion,
the agency did in fact find her "not qualified" for promotion, which she
asserts is demonstrably pretextual in light of the AJ's well-supported
finding that she was "clearly qualified" for promotion.
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).
In deciding the instant appeal, we do not reach the issue of whether
or not complainant is an individual with a disability within the
meaning of the Rehabilitation Act, because we conclude that even
assuming arguendo complainant satisfies that standard, she has not
demonstrated discrimination by a preponderance of the evidence on any
alleged basis with respect to either her 1993 or 1996 non-selections.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. In reaching this
conclusion, we note that contrary to complainant's contention that the
agency failed to proffer a legitimate, non-discriminatory reason for her
1993 non-selection, the promotion board members' testimony regarding their
specific criteria for distinguishing among the candidates was sufficient
to meet this burden of production on the facts of this particular case.
Specifically, although the board members could not recall complainant's
application in particular from among the 100-200 reviewed, they did
testify that they made their recommendations based on a comparison of the
candidates' stated goals, job standards, accomplishments, and the "rated
officer" comments, as well as considering which candidates demonstrated
flexibility, an ability to solve problems during crises, and a clear
record of sustained achievement based on their OERs. Complainant was
then entitled to demonstrate that, applying these criteria, she was more
qualified than those recommended for promotion, and thus, by inference,
the board's proffered reason for her non-selection was a pretext for
discrimination. Complainant did in fact spend a considerable portion of
her testimony at the hearing testifying regarding the ways in which she
believed her OERs were more favorable than those of various candidates
who received promotions. The AJ, however, did not find the comparative
analysis to be persuasive evidence that complainant's non-selection
was motivated by discriminatory or retaliatory animus, and we conclude
that the AJ's findings of no retaliatory or discriminatory intent are
supported by substantial evidence in the record, as reviewed in detail
in the AJ's decision. We therefore we discern no basis to disturb the
AJ's finding of no discrimination.
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
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 8, 2000
__________________
Date
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The evidence was undisputed that complainant was treated for alcoholism
and depression in 1976, and has not consumed any alcohol since 1976.
See Hearing Transcript (HT) at 186.