0120081859
08-21-2009
Margaret Coleman, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
Margaret Coleman,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120081859
Agency No. 05DI02
DECISION
On March 12, 2008, complainant filed an appeal from the agency's February
6, 2008 final decision concerning her equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Senior Intelligence Officer at the agency's Bolling Air Force Base
in Washington, D.C.
On February 7, 2005, and by amendment on March 24, 2005, complainant
filed a formal EEO complaint alleging that she was discriminated against:
1. on the bases of race (Black) and sex (female) when she was
not selected for the position of Supervisory Intelligence Officer
(Operations), Chief, Administrative Services, Headquarters Element,
Directorate for Analysis (DI), Vacancy Announcement #A04-009248-DA;
2. on the basis of race (Black) when her application was not
certified to the selecting manager as one of the most highly-qualified
applications for the position of Supervisory Intelligence Officer (Plans),
Staff for the Military Infrastructure Office (MIO), Directorate for
Analysis (DI), Vacancy Announcement #P04-009638A-MCT; and
3. on the basis of reprisal (prior EEO activity) when (a) management
wrote a comment on her mid-term appraisal which she did not agree with;
(b) management gave a higher score on a performance appraisal to
an individual trained by her; (c) management failed to mark her for
agency-wide leadership on her appraisal; and (d) she was denied the
opportunity to change her work schedule on January 22, 2005.
On July 22, 2005, the agency dismissed claim 3(d) for untimely EEO
contact. The remaining claims were accepted for investigation. 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 initially requested
a hearing, but on May 3, 2006, withdrew her hearing request and asked for
an immediate final decision. In accordance with complainant's request,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the agency found that complainant was not granted a
schedule change on January 22, 2005, at which time she was asked to
put her request for a schedule change in writing; however, complainant
did not contact an EEO Counselor until March 24, 2005. Accordingly,
the agency found this claim should be dismissed for untimeliness.
As for the non-selection involving the Supervisory Intelligence Officer
(Operations) position, the agency found that complainant established a
prima facie case of discrimination because the selectee was a White male.
However, the agency found that complainant failed to establish that
the agency's reasons for choosing the selectee over complainant were a
pretext for discrimination. The agency found that complainant was not
selected for the position because the selectee had superior management
and supervisory experience. The agency found that although complainant
had worked for the agency for 37 years, she failed to establish, by
a preponderance of the evidence that her qualifications or years of
experience made her observably superior for the position.
With respect to the Supervisory Intelligence Officer (Plans) position,
the agency found that complainant failed to establish a prima facie case
because she provided no evidence that the selecting panel was aware of
her race. Assuming, arguendo, that complainant did raise an inference
of discrimination, the agency found that complainant failed to establish
the agency's reasons for its actions were a pretext for discrimination.
Specifically, the panel collectively testified that complainant's
evaluation from her supervisor, which was the most important factor
under review, was not as good as those of other applicants. In fact,
they noted that complainant's performance reviewer had not recommended
her for promotional advancement agency-wide, as her expertise was limited
to Information Technology.
As for complainant's reprisal claim, the agency found that complainant
failed to establish a prima facie case because she failed to prove
that her supervisor was aware of her prior EEO activity at the time he
completed the performance evaluation. Specifically, the record revealed
that the supervisor completed the evaluation on March 18, 2005, but was
not aware of complainant's prior EEO activity until contacted by the
EEO Counselor on June 10, 2005.
In sum, the decision concluded that complainant failed to prove that
she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that she was observably superior for the
Supervisory Intelligence Officer (Operations) position, as evidenced by
her years of experience and her record of assisting the selectee once
he was placed into the position. Moreover, she maintains that she did
have relevant supervisory experience. With respect to the Supervisory
Intelligence Officer (Plans) position, complainant contends that the panel
members were not testifying credibly when they denied any knowledge of
her race. Complainant also claims that her supervisor was not credible
when he denied any knowledge of complainant's prior EEO activity.
Further, complainant requests reinstatement of the dismissed claim on
the ground that it was part of a continuing violation.
ANALYSIS AND FINDINGS
As an initial matter, we agree with the agency's conclusion that
complainant's March 24, 2005 EEO Contact was untimely with respect to the
January 22, 2005 schedule change request. EEOC Regulation 29 C.F.R. �
1614.105(a)(1) requires that complaints of discrimination should be
brought to the attention of the Equal Employment Opportunity Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. The Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive
facts" standard) to determine when the forty-five (45) day limitation
period is triggered. See Howard v. Department of the Navy, EEOC Request
No. 05970852 (February 11, 1999). Thus, the time limitation is not
triggered until a complainant reasonably suspects discrimination, but
before all the facts that support a charge of discrimination have become
apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, complainant has not shown that she was unaware
of the time limitation for EEO Counselor contact or otherwise provided
grounds for an extension of time. We note that the Supreme Court has
held that a complainant alleging a hostile work environment will not
be time-barred if all acts constituting the claim are part of the same
unlawful practice and at least one act falls within the filing period.
See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002). The Court further held, however, that "discrete discriminatory
acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges." Id. Here, however, we find
that what complainant has alleged - denial of a request to change her
schedule - is a discrete act, separate from those other acts alleged to
have been discriminatory. We therefore find that the agency properly
dismissed this claim for untimely contact with an EEO Counselor.
With respect to the accepted issues, we note that, as this is an appeal
from a decision issued without a hearing, pursuant to 29 C.F.R. �
1614.110(b), the agency's decision is subject to de novo review by the
Commission. 29 C.F.R. � 1614.405(a). See EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo
standard of review "requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker," and that EEOC "review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
After a careful review of the record, we find that the preponderance of
the evidence supports the agency's reasons for its actions. Complainant
failed to present persuasive evidence that would prove, more likely than
not, that the panel members were aware of her race when they evaluated
her application, and/or that her supervisor was aware of her prior EEO
contact during the relevant time frame. Accordingly, we find complainant
failed to establish a prima facie case of discrimination or retaliation
with respect to Issues 2 and 3. Even assuming, arguendo, that complainant
did raise an inference of discrimination, we find that she has failed to
present evidence that would prove, by a preponderance of the evidence,
that she should have been referred for further consideration for the
Plans position, given the panel's testimony that complainant lacked
experience in areas other than Information Technology. Further, we
find that complainant failed to dispute, with evidence, the statement
made by her supervisor in her performance evaluation. As for Issue 1,
we also find a lack of evidence supporting complainant's statements
that she had relevant supervisory experience, and that she brought
such experience to the attention of the selecting official. Moreover,
complainant has not established that her skills rendered her "observably
superior" to the selectee for the position.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision.
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
August 21, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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