01a41061
07-29-2005
Patricia A. Rawls, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Patricia A. Rawls v. Department of Energy
01A41061
July 29, 2005
.
Patricia A. Rawls,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A41061
Agency No. 01(103)NETL
Hearing No. 170-A2-8197X
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.
During the relevant time, complainant was employed a General Engineer,
GS-13, at the agency's National Energy Technology Laboratory (NETL)
in Pittsburgh, Pennsylvania.
On February 12, 2001, complainant initiated EEO Counselor contact.
After informal attempts to resolve her concerns were unsuccessful,
complainant filed the instant formal EEO complaint on May 30, 2001.
Therein, complainant claimed that the agency discriminated against her on
the bases of race (African-American) and in reprisal for prior protected
activity when:
(1) she was not selected for any of four (4) Senior Policy Analyst
positions advertised in Vacancy Announcements NETL-00-25A; 26A; 27A;
and 28A<1>;
(2) the NETL Director created a hostile work environment toward
minorities at NETL during an all-hands employee meeting on November
19, 1999, when answering a question submitted by an NETL employee.
Complainant further claimed that the question and answer session during
the meeting was intentionally used by the NETL Director as propaganda
to express a philosophy that damages minorities' career opportunities;
(3) the EEO/Diversity Office created a hostile environment toward
minorities during a mandatory training session entitled, "A Dialogue
on Racial Profiling," conducted on May 1-4, 2000. Complainant further
claimed that the nature of the questions asked was discriminatory; and
(4) she was not selected for a developmental detail assignment for
the Strategic Center for Natural Gas, advertised on June 21, 2000.
Complainant further claimed that the selection process was unfair and
that the developmental assignment gave the candidates that were selected
an advantage over those candidates who later applied for vacancies in
the Strategic Center for Natural Gas.<2>
On September 14, 2001, the agency issued a document identified as
"Notice of Acceptance/Dismissal of Formal Complaint of Discrimination."
Therein, the agency accepted claim (1) for investigation. The agency
dismissed claims (2)-(4) pursuant to 29 C.F.R. � 1614.107(a)(2), on the
grounds of untimely EEO Counselor contact. Specifically, the agency
concluded that the alleged discriminatory events occurred on November 19,
1999; May 1 - 4, 2000; and June 21, 2000; but that complainant did not
initiate EEO contact until February 12, 2001, beyond the forty-five-day
limitation period.
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 on August 12,
2003, finding no discrimination.
In his decision, the AJ concluded that complainant established a prima
facie case of race and reprisal discrimination because the selectees,
not in complainant's protected classes, were selected for the positions
of Senior Policy Analyst. The AJ determined, however, that the agency
articulated legitimate, nondiscriminatory reasons for complainant's
non-selections. The AJ found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination/retaliation. Moreover, the AJ found no
evidence to support complainant's contentions that she was more qualified
than the selectees; and that the evidence of under-representation of
African-American females as a group of minorities did not necessarily
prove that each member of that group was subjected to individualized
instances of discrimination.
On October 8, 2003, the agency issued a final order that fully implemented
the AJ's decision finding no discrimination regarding claim (1).
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.
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, he 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. See 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. See 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. See 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. See 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).
Claim (1)
Non-selection: SCNG positions
Regarding the two Senior Policy Analyst positions with the SCNG (Vacancy
Announcements NETL-00-25A and NETL-00-26A), the record reveals that one
of the four SCNG panelists (SP1) stated that the panel was instructed to
rate the application packages of the candidates individually. The SP1
stated that after each panelist rated the candidates individually,
they met to discuss their score ratings. The SP1 stated that the panel
then submitted its recommendations of three highest ranked candidates
to the selecting official (SSO) for further consideration. The SP1
further stated that complainant was not one of the three highest ranked
candidates because she did not have a strong background �in natural gas,
in the natural gas technology area."
Another SCNG panelist of the 4-member panel (SP2) stated that complainant
was not included in its recommendation to the SSO because the selection
criteria required different types of experience in the natural gas
industry. The SP2 further stated that complainant's experience was
primarily in coal, and "because of that, the scores that were given were
below the cut point of the people that we recommended." The SP2 stated
that even though complainant did not include a Knowledge, Skills and
Abilities (KSAs) in her application package, complainant's package was
sufficient to make a fair evaluation. Furthermore, the SP2 stated that
the panel did not discuss complainant's race or prior protected activity.
Non-selection: OCES positions
Regarding the two Senior Policy Analyst positions with the OCES (Vacancy
Announcements NETL-00-27A and NETL-00-28A), the record reveals that
four candidates, including complainant, were considered Best Qualified
candidates, and were referred to the selecting official (SO) for
further consideration. The SO stated that he sought two candidates
with analytical and communication skills. The SO further stated that
he established a panel of three members including himself to interview
three candidates, including complainant; and that the panel developed the
questions to use during the interview process. The SO stated that the
fourth candidate could not be interviewed by the panel due to schedule
conflicts but he met with the candidate in person. After talking with
the fourth candidate, the SO took him off the list "because I just didn't
feel he was in the same league as the other three candidates.
Further, the SO stated because the highest ranking candidate expressed
her preference for the position with SCNG, discussed above, he chose the
selectee because he was the second ranked candidate. The SO stated that
during the interview, the selectee "brought a dimension to his discussion
of how he would take the data that demonstrated an act to couch the
data in such a way that it would be well received and understood."
The SO stated that because the selectee had experience working in
the private sector and the laboratory, he demonstrated the ability to
�sit on the opposite side of the table and understand what it might
take to communicate a value to people receiving the presentations."
The SO stated that complainant did not rank as highly as the other two
candidates, and indicated that she did not do well during the interview.
The SO stated that he had to ask complainant "a couple of times" for
clarification of her answers to the panel's questions. The SO stated
that the panel made efforts to make sure they understood complainant's
answers "where there was a chance of confusion on our part."
Furthermore, the SO stated that during the relevant time period, he
decided not to fill the second of the two subject positions at OCES
because he was on the road for considerable time periods and would
therefore not be in the office to provide assistance and guidance to
the new Senior Policy Analyst; and due to various protests concerning
agency reorganization. The SO stated that he recently filled the second
vacancy in OCES, after putting in a vacancy announcement. Furthermore,
the SO stated that complainant's race and prior protected activity
were not factors in his determination to choose the selectee for the
subject position.
One of the three OCES panelists (P1) indicated that the SO stated that it
was likely that the highest ranked candidate for the OCES positions would
receive an offer from SCNG, and that "if she chooses [the SCNG position]
then I'm going to make the offer to [Selectee]." The P1 stated that
complainant did not have a good interview because she "did not bring,
in my view, anything innovative or creative." The P1 stated that after
interviewing all three candidates, the panel agreed that complainant
"could have done much better." The P1 stated that while complainant was
"a very talented� employee, she did not have a good interview.
Another OCES panelist of the three-member panel (P2) stated that while
complainant was qualified, she did not do well during the interview. The
P2 further stated that complainant's answers to the panel's questions
were "more in a general response rather than as detailed as some of the
other candidates had answered."
With respect to complainant's argument that she was discriminated against
when the Human Resources overlooked her Knowledge, Skills, and Abilities
(KSA) in the application packages for the four subject positions, the
Director of Human Resources (Director) stated that it was "just simply
an error." The Director further stated that during the relevant time
period, the Human Resources did not know that complainant's KSA was
included in her four applications packages. The Director stated that
when the OCES panel contacted the Human Resources Specialist (Specialist)
to find out why complainant's KSA was not included in her two application
packages for the Senior Policy Analyst positions (Vacancy Announcements
NETL-00-25A and NETL-00-26A), the Specialist pulled the cases and "just
didn't see them in the one." The Director stated that it was not until
after the two panels interviewed the candidates for the four subject
positions, complainant's KSA was discovered. The Director, however,
stated "we also request, but we don't require, supplementary KSAs,
a separate statement." The Director stated that panel members are
"told to rate on what's in the package; regardless of what's there,
to use everything."
The Commission determines that the AJ properly determined that the agency
articulated legitimate, non-discriminatory reasons for complainant's
non-selections for the positions identified in claim (1), as discussed
above. Finally, the Commission also determines that the AJ properly found
that complainant did not establish that the agency's articulated reasons
for its selection, as discussed above, were a pretext for discrimination.
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 properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that the agency's actions were
motivated by discriminatory animus toward complainant's race or prior
protected activity. We discern no basis to disturb the AJ's decision.
Accordingly, the agency's final order implementing the AJ's decision
finding no discrimination concerning claim (1) was proper and is AFFIRMED.
Claims (2) - (4)
Complainant claimed that she was discriminated against when on November
19, 1999, the NETL Director created a hostile environment toward
minorities at NETL during an all-hands employee meeting; on May 1-4,
2000, the EEO/Diversity Office created a hostile environment toward
minorities during a mandatory training session entitled, "A Dialogue on
Racial Profiling;" and she was not selected for a developmental detail
assignment for the Strategic Center for Natural Gas, advertised on June
21, 2000. In a partial dismissal dated September 14, 2001, the agency
dismissed claims (2)-(4) pursuant to 29 C.F.R. � 1614.107(a)(2), on the
grounds of untimely EEO Counselor contact.
A review of the record reveals that the alleged discriminatory events
occurred on November 19, 1999, May 1-4, 2000 and June 21, 2000, but
that complainant did not initiate contact with an EEO Counselor until
February 12, 2001, which is beyond the forty-five-day limitation period.
On appeal, complainant presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Therefore, we find that the agency properly dismissed claim
(2)-(4) for untimely Counselor contact.
Accordingly, we AFFIRM the agency's dismissal of claims (2)- (4) on the
grounds of untimely EEO Counselor contact.
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
July 29, 2005
__________________
Date
1The record reveals that two Senior Policy
Analyst positions were with the Strategic Center for Natural Gas (SCNG),
and the other two positions were with the Office of Coal and Environmental
Systems (OCES).
2For ease of reference, the Commission has numbered complainant's claims
as claims (1) - (4).