01975442
01-15-1999
Ora M. Smith, Appellant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Ora M. Smith v. Department of Education
01975442
January 15, 1999
Ora M. Smith, ) Appeal No. 01975442
Appellant, ) Agency No. ED-9104000
v. ) Hearing No. 100-96-7090X
Richard W. Riley, )
Secretary, )
Department of Education, )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. See EEOC Order No. 960.001.
In his complaint, appellant alleged that she was discriminated against
based on her race (African American) when she was not selected for the
position of Supervisory Grant Specialist, GM-14.
Appellant applied and was found qualified for the position in question.
A Merit Promotion Panel included appellant among the seven best
qualified candidates. These candidates were then interviewed by a three
person panel comprised of the selecting official ("SO," a Caucasian),
the Grants and Contracts Service Deputy Director (the "Director," a
Caucasian) and the Chief, Post-Secondary Education Branch (the "Chief,"
an African American). The questions were all drafted and asked by the
Director, although all three panel members scored the candidate's answers.
After the interviews, the Director prepared a chart which contained the
candidate's scores and computed their total scores. An African American
female ("Candidate 1") scored the highest, followed by a Caucasian female
("Candidate 2") and appellant scored the third highest. The SO ultimately
selected Candidate 2.
Appellant, Candidate 1 and a third African American female candidate,
who had scored sixth of the seven applicants ("Candidate 3") timely
sought EEO counseling and filed EEO complaints alleging that they were
subjected to discrimination based on their race. The agency accepted and
investigated the complaints. Thereafter, all three timely requested a
hearing before an EEOC Administrative Judge ("AJ"), who consolidated the
complaints for a hearing. After a hearing, the AJ issued a recommended
decision ("RD") finding no discrimination.
While appellant argued that she was the better qualified candidate because
she had more technical grant experience than the selectee and maintained
that the Director and the Chief had recommended her for the position,
Candidate 3 argued that she had extensive program experience that rendered
her the better qualified candidate. Candidate 1 contended that despite
not having performed any grant duties for the past 11 years, she was
the better qualified candidate due to her five years of supervisory
experience, and observed that the panel awarded her the highest total
score of the seven interviewed candidates.
All three complainants argued that the SO relied on factors which were not
requirements or qualifications for the position, including consideration
of Candidate 2's prior program experience and her current position within
the Grants Division. In addition, they noted that the SO's explanations
for his selection decision increased and became more detailed over time,
which they argued indicated pretext.
The SO testified that he had narrowed his selection to a choice between
Candidates 1 and 2, but ultimately deemed that Candidate 2 was the
better match for the position because of the combination of her grants
experience in a program office, her supervisory experience and prior
performance evaluation. Candidate 2 had more extensive program office
experience than Candidate 1, and was already in the Grants Division.
After a careful review of the testimony and arguments, the AJ found
that appellant and the other complainants failed to establish pretext.
The AJ noted that Candidate 2 had been rated as "Outstanding" in her
most recent performance evaluation, while the complainants had each been
rated "Superior." Further, Candidate 2 had more supervisory experience
than appellant and approximately the same supervisory experience as
Candidates 1 and 3. While Candidate 1 had excelled in the interview,
her experience primarily was in contracts, rather than grants, and
she had acknowledged that such experience was not interchangeable.
The AJ deemed all of the candidates well qualified for the position,
and found that the complainants failed to produce any evidence that the
articulated nondiscriminatory reasons for the selection of Candidate 2
were a pretext for race discrimination.
In its FAD, the agency adopted the RD. Appellant, through her counsel,
timely appeals.<1> In her brief, appellant again argues that: the
Director and the Chief recommended her for the position; the SO's reasons
for his decision suspiciously increased in detail over time; the SO relied
primarily on factors which were not requirements or qualifications for
the position; and appellant's more substantive grant experience rendered
her more qualified for the position. Appellant also contends that the
AJ committed harmful error by considering evidence which was not part
of the record. In this regard, the Director had retired prior to the
hearing and did not make himself available to testify at the hearing.
However, he had testified at a hearing held earlier on another complaint
arising out of this selection which alleged discrimination based on age,
and his testimony was included in the record as Agency Exhibit 36.
Appellant requested that the AJ not consider the Director's prior
testimony, and Exhibit 36 was not offered into evidence at the hearing
by appellant or the agency. Nonetheless, in footnote 10 of the RD,
the AJ stated: "In a hearing on a previous complaint arising out of this
selection, [the Director] testified that he did not volunteer an opinion
on the relative merits of the interviewees and [the Chief] did not say
who he thought was the best qualified applicant. Agency Exh. 36, at 128,
131, 133." The AJ also noted that the SO had testified that he had sole
responsibility for the selection decision, that the Chief testified that
his only involvement was as an interviewer, and that "[the Director's]
prior testimony [was] that [the SO] was to make the decision without
[further] input after the interviews," citing Exhibit 36. See RD at 8.
Appellant contends that the AJ committed harmful error by giving the
agency "the opportunity to proffer favorable testimony without having that
testimony subjected to the scrutiny of cross-examination." Appellant
argues that this error was harmful, in part because she had asserted
that the Chief and the Director were expected to make recommendations
on the ultimate selection; that the SO had intended to rely on those
recommendations and that the SO's failure to place great weight on their
recommendations of her constituted pretext.
However, after a thorough review of the record (including argument and
evidence not specifically discussed herein), the Commission finds that the
RD adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission notes that it generally
will not disturb the credibility determination of an AJ. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July 26,
1990). In addition, the Commission is not persuaded that the AJ committed
harmful error in noting the prior testimony of the Director. First,
appellant is advised that EEOC hearings are part of the investigative
process and the rules of evidence are not to be applied strictly.
See 29 C.F.R. �1614. 109(c). Second, while appellant objects that her
attorney was deprived of the opportunity to cross examine the Director,
we find that since the Director was no longer a Federal employee whose
presence could be compelled, the AJ properly exercised his discretion
in using the Director's testimony at a prior EEOC hearing on the same
selection and did not abuse his discretion in the amount of consideration
given to such testimony.
Accordingly, the Commission discerns no basis to disturb the AJ's
finding that appellant failed to establish discrimination. Therefore,
it is the decision of the Commission to AFFIRM the FAD.
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. �1614.604(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. 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 (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 15, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 A review of the Commission's records does not reflect that Candidates
1 or 3 filed an appeal from the FAD.