0120073965
03-30-2009
Mathyl De Castro, Complainant, v. Eric Holder, Attorney General, Department of Justice, Agency.
Mathyl De Castro,
Complainant,
v.
Eric Holder,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120073965
Agency No. ATF-2006-00347
Hearing No. 550-2007-00267X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 23, 2007, final order 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. Complainant alleged that the
agency discriminated against her on the bases of race (Asian), national
origin (Philippines), color (brown), and reprisal for prior protected EEO
activity when on April 4, 2006, she was informed that she was not selected
for the position of Supervisory Forensic Auditor (District Manager).
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing finding that complainant failed to show that she had
been discriminated against. The agency decided to fully implement the
AJ's finding of no discrimination.
On appeal, complainant contends that the agency failed to follow its own
Merit Promotion Plan, because panel members were given verbal instructions
instead of written instructions as is required. Complainant also contends
that all four Asian candidates who applied for the position were not
chosen for the Best Qualified List despite their superior qualifications.
Complainant also notes that there are no Asians in managerial positions
at the District Manager level. Further, while complainant alleges that
she was not selected for the position due to her accent, however, there
is no evidence in the record that indicates that this was considered in
any manner in making the selection.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
The Commission finds that even if we assume arguendo that complainant
established a prima facie case of discrimination as to all bases, we
find the agency articulated a legitimate nondiscriminatory reason for
its action, namely, that complainant did not meet the review panel's
cut-off score and therefore was not referred for selection.
Specifically, the agency explained that a three person review panel
reviewed the applications of 16 candidates. The panel rated and
ranked the candidates on each of the five Knowledge Skills Abilities.
A maximum score of 75 points, could be received by each candidate.
For the 16 candidates rated, eight received 75, two received 74, one
received 63, two including complainant received 61, and the remaining
two received lower scores. The ratings were reviewed for consistency
by Human Resources. The name's of the ten candidates who received 74
or higher were forwarded to the Merit Promotion Board. Six candidates
were selected for the position. Complainant's name was not referred
because she received a rating of 61. The agency also indicated that
complainant was not subjected to reprisal because her last EEO activity
occurred approximately ten years before this incident.
Complainant cites her 22 years of experience, her assignment at
Headquarters as Acting Branch Chief, and her very impressive educational
background as reasons why she should have been chosen for the position.
As impressive as this is, we find that this information is not sufficient
to show that the agency's nondiscriminatory reasons are pretext for
discrimination.
Complainant indicates that she should have been selected for the position
based on her experience but she does not maintain that she was so much
better qualified than the selectees that discrimination could be inferred.
Complainant has not shown that the disparities in qualifications
between her and the selectees are "of such weight and significance
that no reasonable person, in the exercise of impartial judgment,
could have chosen the [selectees] over [her] for the job in question."
Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42,608
(11th Cir. 2006), cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007).
Finally, with respect to complainant's contention that there are no Asians
in top managerial positions, this fact alone, even if true, would not
give rise to any claim complainant has standing to assert. Nonetheless,
the agency is encouraged to review its MD-715 Barrier Analysis Report
regarding this subject.
As we do not find that any material facts are at issue, we find the
Administrative Judge's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
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
03/30/09
__________________
Date
4
0120073965
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013