Patricia A. Lewis, Complainant, William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionApr 26, 2000
01995087 (E.E.O.C. Apr. 26, 2000)

01995087

04-26-2000

Patricia A. Lewis, Complainant, William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Patricia A. Lewis, )

Complainant, )

) Appeal No. 01995087

) Agency No. HC-98-004

)

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

)

DECISION

INTRODUCTION

On June 11, 1999, Patricia A. Lewis (the complainant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) dated April 2, 1999, 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.<1> Complainant received the FAD on May 18, 1999. The Commission

hereby accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency properly determined that

complainant failed to prove that the agency discriminated against her

based on race when she was not selected for a position to which she had

applied.

BACKGROUND

Complainant was employed by the agency as a Budget Analyst, GS-13, at

the agency's Headquarters at Fort Belvoir, Virginia. She applied for an

advertised vacancy for the position of Financial Policy Analyst, GS-14,

(the Position), and in May 1997, she was among several candidates referred

on a Competitive Promotion Certificate. An Interview Panel (the Panel) of

three people was convened to interview the candidates, and the complainant

was interviewed. At the end of the interview and selection process,

the complainant was not selected by the Selecting Official (the SO) for

the Position. The Selectee was not of complainant's protected class.

Complainant initiated EEO Counseling on November 20, 1997. She filed

a formal complaint on April 28, 1998, alleging discrimination on the

basis of race (African-American) when, on October 21, 1997, she was

not selected for the position of Financial Policy Analyst, GS-14.

The agency accepted the complaint for investigation and processing.

At the conclusion of the investigation, the agency issued a copy of its

investigative report and notified complainant of her right to request

an administrative hearing. After complainant requested a final agency

decision on the record, the agency issued its FAD on April 2, 1999.

In its FAD, the agency found that the complainant had established

a prima facie case of race discrimination because she was able to

demonstrate that she applied and was qualified for the Position,

but was not selected and the Selectee was not of her protected class.

The FAD further stated that complainant had failed to establish that the

legitimate, nondiscriminatory reason articulated by the agency for its

decision was a pretext for discrimination, and failed to show that she

was �observably superior to the Selectee with regard to any element of

her qualifications.� Complainant timely appeals, without comment.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, she must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency

has met its burden, the complainant bears the ultimate responsibility

to persuade the fact finder by a preponderance of the evidence that

the agency acted on the basis of a prohibited reason. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In response to complainant's claims of discrimination, the agency

presented evidence that the Panel chose the Selectee because they judged

her to be a better qualified and superior candidate for the Position.

Each Panel member testified that they found, after the interview

process was concluded, that the Selectee was the candidate they agreed

by consensus was the best candidate for the Position due to her depth of

experience, her knowledge relevant to the Position, and her leadership

abilities. None of the three Panel members rated the complainant to be in

their top three choices for the Position. Consequently, the SO concurred

with the Panel's recommendation and chose the Selectee for the Position.

The Panel and the SO agreed that the complainant's work experience

was not as broad as that of the Selectee. We find that the agency has

articulated a legitimate, nondiscriminatory reason for its action.

Since the agency articulated a legitimate, nondiscriminatory reason

for its action, the burden returns to the complainant to demonstrate

that the agency's articulated reason was a pretext for discrimination.

We find that complainant has failed to do so. Complainant argued that

she should have been selected for the Position because she was more

qualified than the Selectee. We find, however, after a thorough review

of the record, that the complainant did not show that her qualifications

were measurably superior to those of the Selectee. In the absence of

such a showing, the agency has the discretion to choose among equally

qualified candidates for a position, and their choice of the Selectee

was not improper. Therefore, the agency's determination that complainant

failed to establish that she was discriminated against was correct.

CONCLUSION

Accordingly, the decision of the agency was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

04-26-00 __________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at WWW.EEOC.GOV.