01981691
03-31-2000
Lisea Merrick, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Drug Enforcement Agency), Agency.
Lisea Merrick v. Department of Justice
01981691
March 31, 2000
Lisea Merrick, )
Complainant, )
) Appeal No. 01981691
v. ) Agency No. D-96-3409
) Hearing No. 100-97-3409
Janet Reno, )
Attorney General, )
Department of Justice, )
(Drug Enforcement Agency), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black) and sex (female), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges she was discriminated against on the above-stated
bases when she was not selected for a position as a Special Agent with the
agency. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was assigned
to the agency's Miami, Florida, Field Division as a Police Officer,
and she applied for a Special Agent position under Vacancy Announcement
95-02 on November 29, 1995. Complainant alleges that on December 26,
1995, the recruiter of Special Agents for the Miami Field Division
informed her that she was not qualified for the Special Agent position,
and in February of 1996, she learned that a fellow applicant (White
male) had been interviewed for a Special Agent position. On February
29, 1996 and April 1, 1996, complainant received letters from the
Special Agent Recruitment Unit stating that she would not be offered a
Special Agent position. Believing she was a victim of discrimination,
complainant sought EEO counseling beginning on May 7, 1996, and filed
a formal complaint with the agency on December 23, 1996.
At the completion of the agency's investigation, complainant received
a copy of the investigative file and subsequently requested a hearing
before an EEOC Administrative Judge (AJ). Without holding a hearing,
the AJ found in his Recommended Decision (RD) that complainant failed
to timely initiate EEO counseling within forty-five (45) days of the
alleged discriminatory act as required by 29 C.F.R. �1614.105(a)(1).
Specifically, the AJ found that the claim was untimely as complainant
reasonably suspected discrimination in December of 1995 and upon receipt
of the initial rejection letter in February of 1996, but did not seek
EEO counseling until May 7, 1996. The AJ found that complainant did
not allege that she was unaware of the 45-day time limit for counselor
contact, and neither her efforts to change the agency's hiring decision
nor her receipt of a second rejection letter made her claim timely.
As a result, the AJ dismissed the complaint.
The agency's FAD rejected the RD's findings regarding the timeliness
issue, stating that as it could not definitively determine when
complainant initiated contact with the agency's EEO Counselor, it would
not contest the timeliness of the claim. The FAD then addressed the
merits of complainant's claim and found that the agency articulated a
legitimate, nondiscriminatory reason for not hiring complainant as a
Special Agent, namely, that she did not meet the minimum requirements to
interview for the position based on the graded score she received on her
application, which included law enforcement experience and military duty
history as well as education. The FAD further found that the agency's
articulated reasons for not hiring complainant were not a pretext for
discrimination. On appeal, complainant contends that the FAD erred in
finding that she was not subjected to race or sex discrimination when
her application for a Special Agent position was rejected. The agency
responds, contending that the Commission affirm the FAD.
The Commission initially finds that it was proper for the FAD to reject
the AJ's dismissal of complainant's claim due to untimely EEO counselor
contact. In so finding, we agree with the FAD that as the exact date
complainant sought EEO counseling could not be ascertained by a review of
the record, the agency would not contest the timeliness of the claim.<2>
Considering the merits of complainant's claim, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission initially agrees
with the FAD that the agency articulated a legitimate, nondiscriminatory
reason for not selecting complainant as a Special Agent when she applied
for the position in 1995. In so finding, we note that complainant's
application was scored on a uniform system under which each applicant
received a specific amount of points for each category. Complainant
received forty-five (45) points for her Bachelor's and Master's degrees,
but received no points for her experience as a correctional officer, in
law enforcement or in the military, based on the agency's criteria for
scoring the applications. The agency's articulated scoring system gave
credit for active military duty experience if it exceeded one year, and
credit for law enforcement experience if it involved at least one year of
work as a sworn uniformed police officer. As complainant did not have one
year of active military duty or uniformed law enforcement experience, she
received no points in these categories despite her claim that she should
have received points for her work as a corrections officer. We further
find that complainant failed to establish that the agency's articulated
reasons were a pretext for discrimination based on her race or sex.
We note that the comparison employee referred to by complainant was
given a higher score which merited an interview, as unlike complainant,
he had more than five years of military experience and a Veteran's
preference. As such, we find that complainant has failed to demonstrate
that discriminatory animus was present when she was not selected for a
Special Agent position. 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 (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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 31, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Commission notes that complainant has not alleged on appeal that
she was deprived of her right to a hearing by the Administrative Judge.