Patricia A. Collins, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01A33410 (E.E.O.C. Jan. 12, 2000)

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.