0120081691
09-17-2009
Lynn M. Poindexter, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Lynn M. Poindexter,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120081691
Agency No. F-06-6111
DECISION
Complainant filed an appeal with this Commission from the January 22,
2008 agency decision finding no discrimination.
Complaint alleges 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. Specifically, complaint alleges that the agency discriminated
against her based on her race (Black) when she was not selected for
one of six Supervisory Management and Program Analyst (Program Manager)
positions in the Personnel Security Adjudications Section (PSAS).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
that the agency issue a decision.
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must generally
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed
with where the agency has articulated legitimate, nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 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, 120 S.Ct. 2097
(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
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Upon review, the Commission finds that the agency's finding of no
discrimination was proper. The record reflects that complainant applied
for one of the six supervisory Program Manager positions in the PSAS.
She was not selected by the first Career Board in November 2005 when five
persons were selected.1 Complainant was not selected by a second Career
Board in January 2006 after the vacancy announcements were re-posted to
fill two positions. The record reflects that complainant was not selected
because the Career Board had concerns about complainant's interpersonal
skills and her management style. Complainant has failed to show that
the agency's reasons for not hiring her were pretext to mask unlawful
discrimination. In complainant's affidavit, complainant herself noted
that shortly after the beginning of January 2005, the Unit Chief, Law
Enforcement and Contractor Adjudication Unit, Security Division informed
her that approximately eight people had gone to the Ombudsman to complain
about complainant. There is no evidence that it was racism that led the
eight people to complain to the Ombudsman or that she was meeting with
staff resistance because of her race. There is also evidence in the
record that complainant and one of her staff were in conflict because
of her having to address the staff member's inadequate performance.
Finally, the Commission notes that a Black candidate was selected for
one of the six positions although it was not entirely clear whether she
was selected by the first or second Career Board.
Accordingly, it is our conclusion that complainant has not shown by
a preponderance of the evidence that her nonselection was pretextual
or motivated by discriminatory animus. Even if the agency lied about
complainant's interpersonal skills, complainant must link the lie or
its creation to prohibited discrimination. It is not sufficient "to
disbelieve the employer; the fact finder must believe the plaintiff's
explanation of intentional discrimination." St. Mary's Honor Center, 509
U.S. at 519. At all times, the ultimate burden of persuasion remains
with complainant to demonstrate by a preponderance of the evidence
that the agency's reasons were pretextual or motivated by intentional
discrimination. Complainant failed to carry this burden.
The agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
September 17, 2009
__________________
Date
1 The record reveals that one of the selectees chosen in November 2005
declined the position offered. Subsequently, two vacancies were reposted
for the Program Manager position.
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0120081691
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013