K. Kimberly King, Complainant,v.Joseph D. Duffey, Director, United States Information Agency, Agency.

Equal Employment Opportunity CommissionMar 8, 2000
01981578 (E.E.O.C. Mar. 8, 2000)

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.