0120082313
09-18-2009
Melody A. Courtney, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Melody A. Courtney,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082313
Hearing No. 490-2006-00074X
Agency No. 2003-0580-2005103162
DECISION
On April 17, 2008, complainant filed an appeal from the agency's February
19, 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 timely1 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 Police Officer, GS-6, at the agency's Michael E. DeBakey Medical
Center in Houston, Texas.
On October 15, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of her sex when:
1. on May 25, 2005, complainant was sent a memorandum from the Human
Resources Manager, informing her that she was non-selected for the
position of Police Officer Leader, GS-083-7, under Vacancy Announcement
Number 56-05;
2. in June of 2004, complainant's repeated requests for authorization
to training classes were denied;
3. in July of 2004, complainant was addressed and advised that she must
obtain new uniforms because her uniforms were "tight and revealing";
4. on two different occasions in April of 2005, the Chief of Police (CP),
GS-13, addressed the Security Assistant, asking if a certain male officer
was available to work on a case, and all were asked except complainant;
5. sometime in May of 2005, complainant approached the Chief in regard to
comments made by several officers that the Chief does not promote females
and the Chief became irate and began speaking in a loud voice; and
6. in September of 2005, complainant volunteered for duty in New Orleans
after Hurricane Katrina and received a call from the Assistant Chief
of Police (ACP), GS-12, asking if she could be ready in two hours to
travel and whether her emotional state would be affected if she were
not chosen.
In a letter dated January 26, 2006, the agency dismissed claims 2, 3,
4 for untimely EEO Counselor contact. The agency also dismissed claim
5 for failure to state a claim. 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 a hearing. In an order dated October 24, 3006, the
AJ assigned to the case dismissed the hearing request because complainant
was unable to proceed with the hearing due to medical reasons. The AJ
ordered that when complainant was recovered, she should contact her
EEO office and request a hearing before an AJ, and that if complainant
failed to do so, the agency issue should a final agency decision (FAD).
When complainant failed to request a hearing, the agency issued a FAD.
The decision concluded that complainant failed to prove that she was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal complainant requests that the Commission reconsider the agency's
finding of no discrimination. The agency argues that the FAD was properly
decided.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that because complainant has not
contested the dismissals of claims 3 through 6, we decline to address
them on appeal. Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November 9, 1999).
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 EEO MD-110,
Chapter 9, � VI.A. (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).
She 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 in this case, however, since the agency has articulated
legitimate and 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, 143 (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).
Assuming, arguendo, that complainant established a prima facie case
sex discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with regard
to claim 1, the CP stated that he selected the candidate who was ranked
the highest by the selecting panel. The record reveals that members
of the selecting panel ranked the eight candidates based entirely on
the candidates' responses to the interview questions. The interview
panel posed fifteen questions to the candidates involving police policy,
procedures, and hypothetical scenarios inquiring what types of leadership
and supervisory actions the candidate would take in certain situations.
The selectee was the top ranked candidate, scoring 185, compared to
complainant's score of 177. The selectee was unanimously recommended
by the members of the selecting panel to the CP, whereas complainant
was ranked fourth.
With regard to claim 2, the ACP provided affidavit testimony that he
was merely concerned whether complainant would be "okay" if she were
not selected for the assignment in New Orleans. The ACP stated he asked
this of male police officers as well.
Because the agency articulated legitimate, nondiscriminatory reasons
for its action, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reasons are a pretext for
discrimination. With regard to claim 1, in nonselection cases, pretext
may be found where the complainant's qualifications are demonstrably
superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). In this case, we find that complainant has not made this
showing. We note that the record reflects that the selectee had prior
relevant supervisory experience, while complainant did not. Further,
complainant failed to offer any evidence to show that the agency's
proffered reasons are not worthy of credence. Although complainant argues
that the CP bore animus toward women, complainant has offered no evidence
to support a finding that the CP was motivated by discriminatory animus
with regard to the selection action. Likewise, although there is some
indication that other employees were heard speaking disparagingly about
working with women police officers, complainant submitted no evidence
that these individuals were involved in the selection process.
Complainant argues that the selectee was preselected. We find that the
record does not support complainant's allegations. While we are not
convinced that preselection occurred, we note that we have held that
preselection, per se, does not establish discrimination under Title VII
when it is based on qualifications of the selected individual and not
some basis prohibited by Title VII. McAllister v. United States Postal
Service, EEOC Request No. 05931038 (July 28, 1994). Because we find that
complainant has failed to offer probative evidence demonstrating that the
agency's selection decision was based on prohibited bases under Title VII,
we also find that even if the selectee were preselected, no discrimination
occurred. Ultimately, the agency has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek
v. Department of the Treasury, EEOC Request No. 05940906 (January 16,
1997).
With regard to claim 2, we find that complainant failed to put
forth sufficient evidence to show that the ACP was motivated by
discriminatory animus. We note that another female police officer
provided affidavit testimony that the ACP did not ask the same question
of her.2 Accordingly, we find that the agency's finding that complainant
failed to show she was discriminated against is supported by evidence
in the record.
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
FAD finding of no discrimination.
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 18, 2009
Date
1 Complainant states, and the agency does not contest, that she did not
receive the final agency decision until March 20, 2008.
2 To the extent that complainant contends that she was subjected to
harassment as a result of the incident in claim 2, we note that because
complainant failed to establish that the incident either occurred as
alleged or was taken on the basis of her membership in a protected class
(in that she did not refute the legitimate, nondiscriminatory reasons
proffered by the agency), complainant failed to establish that she was
subjected to prohibited harassment. See Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000); Applewhite v. Equal
Employment Opportunity Commission, EEOC Appeal No. 01994939 (April 6,
2000); Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 23, 1998); EEOC Guidance on Investigating, Analyzing Retaliation
Claims, No. 915.003 (May 20, 1998).
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0120082313
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082313