Ora M. Smith, Appellant,v.Richard W. Riley, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01975442 (E.E.O.C. Jan. 15, 1999)

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.