Melody A. Courtney, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 18, 2009
0120082313 (E.E.O.C. Sep. 18, 2009)

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