Paula M. Glass, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 30, 2007
0120070015 (E.E.O.C. Aug. 30, 2007)

0120070015

08-30-2007

Paula M. Glass, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Paula M. Glass,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120070015

Hearing No. 130-2005-00230X

Agency No. ARMICOM004SEP0034

DECISION

On September 21, 2006, complainant filed an appeal from the agency's

June 21, 2006, final decision concerning her equal employment opportunity

(EEO) complaint alleging 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 deemed timely and is accepted pursuant to

29 C.F.R. � 1614.405(a).1 For the following reasons, the Commission

affirms the agency's final decision.

During the relevant time, complainant worked as a Logistics Clerk,

GS-303-05, with the U.S. Army Aviation and Missile Command, Integrated

Material Management Center, Maintenance Directorate, at the Redstone

Arsenal in Alabama. In May 2003, the Supervisor Customer Service (SCS)

sought to fill the position of Temporary Supply Technician (GS-2005-07).

Complainant forwarded her resume and supplemental information for the

position, and SCS subsequently selected complainant for the position. SCS

forwarded a Request for Personnel Action (RPA) to the Central Personnel

Office Center (CPOC) for qualification review and appointment. However,

the Human Resource Specialist (HRS) assigned to conduct the review

determined that complainant was not qualified for the position because she

did not possess one year of specialized experience at the GS-6 level. HRS

informed SCS of complainant's ineligibility via e-mail.2 Thereafter, HRS

informed complainant's supervisor (the Supervisor) that he could place

a memorandum in complainant's OPF to enhance her chances for promotion,

and although the Supervisor requested the information from complainant,

complainant failed to provide it. The position was rescinded because

no qualified applicant was found.

On November 1, 2004, complainant filed an EEO complaint alleging that

she was discriminated against on the bases of race (African-American),

sex (female), and reprisal for prior protected EEO activity when:

1. On August 16, 2004, she discovered information in her official

personnel file (OPF) that may have prevented her from selection to a GS-7

Temporary Supply Technician position in May, 2003, and future promotions,

and caused her to experience harassment; and

2. The information discovered in her OPF on August, 16, 2004,

prevented her from selection to a GS-07 Temporary Supply Technician

position in May, 2004, and for future promotions, and caused her to

experience harassment.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing but subsequently failed to comply with the AJ's

orders. Consequently, the AJ returned the complaint to the agency for

issuance of a final decision pursuant to 29 C.F.R. � 1614.110(b).

In its decision, the agency concluded that complainant failed to prove

that she was subjected to discrimination as alleged. The agency found

that complainant failed to establish a prima facie case of race, sex,

or reprisal discrimination. It then assumed arguendo that complainant

established a prima facie case of discrimination, and found that

management articulated legitimate nondiscriminatory reasons for its

actions. It concluded that, besides her bare assertions, complainant

failed to provide any evidence that management's reasons were pretext

for discrimination.

Complainant filed the present appeal and argues, among other things,

that she was qualified for the position. Moreover, she maintains that

she held a position in the GS-6 grade.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She

must generally establish a prima facie case by demonstrating that

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

The agency articulated legitimate and nondiscriminatory reasons for

its conduct through SCS, HRS, and the Supervisor. Specifically, SCS

testified that he selected complainant for the position in question, and

forwarded an RPA for qualification review and appointment. HRS averred

that complainant's OPF did not reflect that she possessed one year of

specialized experience at a GS-6 level, as required for qualification for

the GS-7 position, and she provided that information to SCS via email.

Finally, the Supervisor testified that he notified complainant that

she could draft documentation regarding her qualification as GS-6, and

he would place the information in her OPF for further consideration,

but complainant failed to provide such documentation.

Since the agency articulated the aforesaid reasons for its actions,

the burden returns to complainant to show that the reasons provided are

pretext for discrimination. Complainant asserts that she was qualified

for the position, and that she held a position in the GS-6 level. She,

however, fails to provide any proof that she held a GS-6 level position

or that the agency knew that she held such a position. Moreover, she

does not refute that the Supervisor provided her with the opportunity to

place documentation in her OPF for further consideration, but she failed

to provide it. For these reasons, we find that complainant has failed

to show by a preponderance of the evidence that the agency discriminated

against her on the bases or race, sex, or in reprisal as alleged in the

present complaint. Based on a thorough review of the record and the

contentions on appeal, including those not specifically addressed herein,

we affirm the agency's final decision.

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

__8-30-07________________

Date

1 In its brief, dated November 14, 2006, the agency maintains

that complainant's appeal is untimely filed because complainant's

representative signed a certified mail return receipt card on June 30,

2005, but complainant did not file the present appeal until September

21, 2006. The agency, however, fails to provide a copy of the return

receipt card with its brief, and although it asserts that a copy of said

card is part of the record, a return receipt card with a signature date

of June 30, 2005 cannot be located therein. Accordingly, the Commission

will review complainant's appeal on the merits.

2 The discussions regarding her qualifications in said e-mail form the

basis of claim (1).

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0120070015

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070015