01A31192
02-04-2004
Kimberly Y. Hill v. National Aeronautics and Space Administration
01A31192
February 4, 2004
.
Kimberly Y. Hill,
Complainant,
v.
Sean O'Keefe,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01A31192
Agency No. NCN-01-GRC-AO23
DECISION
Complainant timely initiated an appeal from a final agency decision
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. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Procurement Assistant GS-1106-6, at the agency's Glenn
Research Center, Procurement Division, Space Systems and Grant Branch.
Complainant sought EEO counseling and subsequently filed a formal
complaint on January 10, 2001, alleging that she was discriminated against
on the basis of her race (African-American) when she was not selected
for the position of Contract Specialist, GS-1102-7/9/11, in June 2000.
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 established a prima
facie case of discrimination because she demonstrated that she applied
for and was qualified for the position in question, she was not selected,
and that those selected were not members of her protected class. Even so,
the agency concluded that it had legitimate nondiscriminatory reasons
for not selecting complainant �namely that complainant's supervisory
ratings were not as high as those of the selectees, her writing skills
were weak based on errors found in her application, and she had a history
of problems with interpersonal relationships. In addition, the agency
stated that those selected had more direct experience in contracting.
On appeal, complainant contends that the reasons offered by the agency
were a pretext for discriminatory animus because her qualifications far
exceeded those of the selectees. Complainant argues that those selected
either did not have the educational qualifications called for by Office
of Personnel Management (OPM) standards, or they failed to demonstrate
that they had the relevant specialized experience at the next lower
grade level. The agency submitted no additional comments and requests
that we affirm its FAD.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Const. Co. v. Waters,
438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with when the agency has
articulated legitimate and nondiscriminatory reasons for its conduct.
United States Postal Servic. Bd. of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (Nov. 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley, v. Department of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997).
A review of the record in this case leads the Commission to conclude
that complainant failed to establish that her non-selection was based
on her race. More specifically, complainant failed to demonstrate
that the agency's reasons for not selecting her were a pretext for
discrimination. Complainant argues that her credentials far exceeded
those of the selectees but the record does not support her contention.
Rather, her application reflects that while she has the educational
pre-requisites in terms of a four year degree, both of the selectees,
who were GS-9 Contract Specialists at the time of their applications,
had more experience in contracting called for in the vacancy announcement.
Complainant argues that at least one of the selectees did not meet the
agency's own criteria for promotion within the contracting series, which
required education credits as well as demonstrated specialized experience
in the related field. Although this may have been true, complainant
failed to demonstrate that those initially qualifying the selectees
harbored any discriminatory animus. Moreover, she failed to establish
that those on the interview panel were motivated by discrimination in
ranking complainant's application lower than both of the selectees.
These individuals, to whom the qualifying applications were referred,
stated that they based their recommendations of the best qualified on
the supervisor's statements and ratings and the candidate's experience
in contracting among other things. According to a member of the
interview panel, complainant's experience in the grants application
process was not as directly relevant as the selectees' backgrounds
as purchasing agents and a warranted contract officer respectively.
The record contained the selectees' written applications corroborating
these facts. It also reflected written documentation that complainant's
ratings according to the selection criteria, although good, were not as
high as either selectee. Thus, there was no evidence that the agency's
ratings and ultimate selections were not credible or were a pretext
for discrimination.
Therefore, based on the foregoing findings and considering complainant's
contentions on appeal, the agency's final agency decision, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's decision finding no discrimination.
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
February 4, 2004
__________________
Date