Norma S. Coon, Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, (U.S. Customs Service), Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01971179 (E.E.O.C. Jan. 29, 1999)

01971179

01-29-1999

Norma S. Coon, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (U.S. Customs Service), Agency.


Norma S. Coon v. Department of the Treasury

01971179

January 29, 1999

Norma S. Coon, )

Appellant, )

)

v. ) Appeal No. 01971179

) Agency No. TD-94-2317

Robert E. Rubin, )

Secretary, )

Department of the Treasury, )

(U.S. Customs Service), )

Agency. )

___________________________________)

DECISION

On November 20, 1996, Norma S. Coon (appellant) appealed the final

decision of the Department of the Treasury (agency), dated October 10,

1996, which concluded that she had not been discriminated against in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq., and the Age Discrimination in Employment Act (ADEA)

of 1967, as amended, 29 U.S.C. �621 et seq. Appellant had alleged she

had been discriminated against by agency's Miami, Florida office of the

U.S. Customs Service on the bases of her race (white) and/or age (66;

DOB:3/30/28) when she was not selected for the position of Paralegal

Specialist, GS-950-09. This appeal is accepted in accordance with the

provisions of EEOC Order No. 960.001.

At the time of the events at issue, appellant was employed in the Miami

District of the U.S. Customs Service as a Paralegal Assistant, GS-07.

In late December 1993, the agency issued a vacancy announcement

soliciting applicants for the position of Paralegal Specialist, at

the GS-05/07/09/11 levels. In response to the vacancy announcement,

appellant submitted a timely application, indicating she wished to be

considered at both the GS-9 and GS-11 levels. Appellant was among the

twenty-nine applicants who were found to meet the basic eligibility

requirements for the position. All twenty-nine applications were then

forwarded to a two-person Evaluation Board (white male, under age

40; white female, over age 40) to determine the best qualified list.

The Evaluation Board members stated that the candidates were evaluated by

the following criteria: (1) knowledge of legal principles and concepts;

(2) ability to communicate orally; and (3) ability to communicate in

writing. As a result of the evaluation, seven candidates (three Hispanic,

all age 40 or under; three white, two over age 40 and one under 40; and

one black, over age 40) were rated as best qualified at the GS-09/11

levels and their names were forwarded to the selecting official for

final consideration.<1> Appellant was not rated high enough to make the

cutoff score for placement on the best qualified list. On August 22,

1994, the selecting official chose a Hispanic female, under age 40,

for the position in question at the GS-07 level.<2>

On September 27, 1994, appellant filed a formal EEO complaint, alleging

that the agency had discriminated against her as referenced above.

The agency accepted the complaint and conducted an investigation.

At the conclusion of the investigation, appellant initially requested a

hearing before an EEOC administrative judge, but subsequently withdrew

that request. On October 10, 1996, the agency issued its final decision

based on the evidence of record, finding race and/or age discrimination

had not been established. It is from this decision that appellant now

appeals.

Appellant's complaint constitutes a claim of disparate treatment which is

properly analyzed under the three-tiered analytical framework outlined

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also,

U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716

(1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

253-256 (1981).

Applying this analysis, the Commission finds that appellant has

established a prima facie case of race and/or age discrimination

because the evidence indicates that significantly younger candidates and

candidates of other races were placed on the best qualified list while

she was not. However, the members of the Evaluation Board successfully

rebutted that initial inference of discrimination with an articulation

of legitimate, nondiscriminatory reasons for the ratings given.

Specifically, Board members stated that all the candidates were rated

against a set of objective criteria and the same type of information

was used in rating each candidate. Both Board members explained that

appellant was not ranked among the best qualified candidates because her

application materials addressed the evaluation criteria with generalities

and did not indicate, with sufficient detail, the types and degree of

difficulty of her work experience. Moreover, the Board members said

that although she received a rating of "excellent" from her supervisor on

the appraisal of her promotional potential submitted with her application,

this appraisal also did not contain any specifics of how her work met the

"excellent" level.

After a careful review of the record, the Commission concludes that

appellant failed to establish, by a preponderance of the evidence,

that the agency's articulated reasons for its actions in this matter

were unbelievable or that its actions were more likely motivated by

discrimination. Appellant's claim that she was significantly better

qualified than the selectee has not been proven. Nor is her assertion

that she made the best qualified list in previous selections for similar

positions dispositive of discrimination. The agency has explained that

a candidate's relative standing will vary for each vacancy according to

the number and quality of the applicants and the specific requirements of

that position. The Board members averred that there were many competitive

candidates for this particular position. A thorough review of the record

reveals no evidence that the selection process in this case was tainted

by race or age discrimination.

Accordingly, for the foregoing reasons, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. � l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from

the date that you receive this decision. To ensure that your civil

action is considered timely, you are advised to file it WITHIN THIRTY

(30) CALENDAR DAYS from the date that you receive this decision or

to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the

administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Jan 29, 1999

__________________ _______________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 Eleven of the twenty-seven candidates, including appellant, were

considered for positions at the GS-09/11 level.

2 The selectee had requested consideration at the GS-07/09 levels.