01A33410
01-12-2000
Patricia A. Collins, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Patricia A. Collins v. Department of the Army
01A33410
January 12, 20004
.
Patricia A. Collins,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A33410
Agency No. BDXF00003A0100
Hearing No. 310-A1-5020X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a General Supply Specialist
GS-11 at the agency's Depot Property Division, Red River Army Depot,
Texarkana, Texas facility, filed a formal EEO complaint on January 3,
2000, alleging that the agency had discriminated against her on the
bases of race (African-American), color (black), religion (Baptist),
age (50) and sex (female) when she was not selected for the position of
Supervisory Production Controller GS-1152-12.<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of race
discrimination because complainant, an African American, was qualified
for the position in question, she applied but was not selected and the
person selected was not a member of complainant's protected class.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not
establish were a pretext for discrimination. More specifically, the AJ
found that there were several criteria on which the selection was based
including the applicant's self-rating score, the supervisor's rating
and supervisory experience. According to the AJ, complainant did not
score herself as high as the selectee had on the applicant self-rating,
consequently, complainant was not as qualified as the selectee by her
own admission. Based on this fact, complainant failed to show the
agency's reason for not selecting her, that she did not score as high
as the selectee, was a pretext for discrimination.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred by finding no
discrimination because the agency's pre-selection of the successful
candidate was discriminatory and was a violation of due process.
Complainant further contends that she established the agency's reasons
for not selecting her were a pretext for discrimination because its
pre-selection indicated the selection criteria were not used in making
the selection. The agency argued that the AJ's decision was correct
because complainant was not as qualified as the selectee.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision was a correct application of the appropriate
regulations and laws. The record evidence supports that complainant did
not rate as high the selectee in her supervisory experience where she
was assigned zero points. In addition, complainant's self-assessment
of her skills and experience fell below that of the selectee which when
tallied with her other scores, left her eight points behind the selectee.
Even if there was pre-selection, there was objective evidence that the
selectee was more qualified than complainant. Therefore, after a careful
review of the record, including complainant's contentions on appeal,
the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 12, 20004
__________________
Date
1The investigative report indicated that
complainant withdrew the bases of religion, sex and age during the course
of the investigation which complainant did not dispute. Therefore,
these bases will not be addressed in this decision.