01986531
05-03-2000
Michele Cloutier, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Michele Cloutier v. Department of the Navy
01986531
May 3, 2000
Michele Cloutier, )
Complainant, )
) Appeal No. 01986531
v. ) Agency No. 93-66604-004
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning her claim that the agency violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<0> The appeal is accepted by the Commission in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the complainant has established that
the agency discriminated against her based on sex (female) when she was
not selected for the position of Electronics/Mechanical Engineer/Computer
Scientist.
BACKGROUND
The complainant filed a formal complaint in August 1993 in which she
raised the issue identified above. Following an investigation, the
complainant requested an EEO administrative hearing but subsequently
withdrew that request. The agency thereafter issued a final decision
(FAD) dated July 17, 1998, finding no discrimination. It is from this
decision that the complainant now appeals.
During the period in question, the complainant was employed as a
Computer Scientist with the agency's Naval Undersea Warfare Center in
New London, Connecticut. In November 1992, the agency advertised the
interdisciplinary position of Electronics/Mechanical Engineer/Computer
Scientist, GM-855/830/1550-13/14 (the Position), located in Norfolk,
Virginia. The record reveals that the Position's selecting official
(SO) was the complainant's immediate supervisor, and he testified that
he had repeatedly discussed with her the possibility of promoting her
to the GM-14 level. In this regard, the SO testified that he encouraged
the complainant to apply for the Position.
After applying for the Position, the complainant, along with six other
applicants, was referred to a four-member rating panel (Panel). Because
the complainant received the lowest score (46), she was not placed on the
Best Qualified list (BQL) that was forwarded to the SO. The SO stated
that, because he was surprised not to see the complainant's name on the
BQL, he reviewed the applications himself. Although the SO agreed with
the Panel's ratings, he inquired as to whether he could still interview
the complainant. The SO was told that he could, but that, in the event
he selected her, he would have to justify his decision to select her
over the individuals on the BQL. The SO conducted another review of
the applications and "concluded that [he] would not be able to justify
[the complainant's] possible selection over the others and decided not
to interview her." The record reveals that the individual (the Selectee,
male) ultimately selected by the SO was a Supervisory Electrical Engineer
who had received a score of 51.5 points from the Panel.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
is a three-step process. The complainant has the initial burden of
establishing a prima facie case. If the complainant meets this burden,
then the burden shifts to the agency to articulate some legitimate,
nondiscriminatory reason for its challenged action. The complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
articulated by the agency was not its true reason, but was a pretext
for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
We find that the complainant is able to establish a prima facie case of
sex discrimination. Specifically, she applied for the Position and was
not selected in favor of the Selectee, a male. See Bundy v. Jackson,
641 F.2d 934, 951 (D.C. Cir. 1981). The agency now has the burden of
articulating a legitimate, nondiscriminatory reason for the challenged
action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). We find that the agency has met this burden. Specifically,
the record establishes that the complainant was not selected for the
Position because she did not receive a high enough score from the Panel
to receive an interview from the SO.
At this point, the complainant bears the burden of establishing that the
agency's articulated reason is a mere pretext for discrimination. The
complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at
256. In a non-selection case, pretext may be demonstrated where the
complainant's qualifications are shown to be plainly superior to those of
the selectee(s). Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
An employer, however, has the discretion to choose among equally
qualified candidates so long as the decision is not based on unlawful
criteria. Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981).
We find that the complainant has not established pretext. Specifically,
although it is apparent that the complainant was qualified for the
Position, the Selectee was qualified as well. Therefore, we find
the complainant has not demonstrated that her qualifications for the
Position were "plainly superior" to those of the Selectee. Furthermore,
we note that the SO made efforts to see whether the complainant could be
interviewed, but, in the end, was constrained by the fact that she had
not received a high enough score to be placed on the BQL. Accordingly,
we find insufficient evidence to conclude that the agency discriminated
against the complainant based on sex.
CONCLUSION
It is the decision of the Commission to AFFIRM the FAD and find the
complainant has not established that she was discriminated against
as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
05-03-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
01 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at WWW.EEOC.GOV.