01a53415
10-06-2005
Rosemary McMillan-Crawford, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Rosemary McMillan-Crawford v. Department of Defense
01A53415
October 6, 2005
.
Rosemary McMillan-Crawford,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Appeal No. 01A53415
Agency No. GA-04-025
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 decision.
The record reveals that complainant, a Quality Assurance Specialist,
at the agency's Defense Supply Center Richmond (DSCR) in Richmond,
Virginia, filed a formal complaint on July 14, 2004, alleging that she
was discriminated against on the bases of race (Native American), sex
(female), and color (brown) when she was not selected for the position of
Supervisory Quality Assurance Specialist, GS-1910-12, advertised under
Job Opportunity Announcement (JOA) DSCR-04-1167. At the conclusion of
the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a final decision by the agency. Complainant requested that the agency
issue a final decision. In its FAD, the agency found no discrimination.
It concluded that complainant had established a prima facie case of
race, sex, and color discrimination but had not presented sufficient
evidence that the agency's nondiscriminatory reasons for non-selection
were a pretext for unlawful discrimination.
In the absence of direct evidence, a claim of discrimination is
examined under the three-part evidentiary analysis originally
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.
Id. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Here, complainant suffered an adverse employment action when she was
not selected for the Supervisory Quality Assurance Specialist position.
She is a brown, Native American female, and therefore is a member of
a protected class. Investigative File (IF) at 62-68. Additionally,
the applicant hired for the position is a white male. IF at 132-139.
We will assume arguendo that these facts give rise to an inference of
discrimination.
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). The selecting official
indicated in his declaration that he chose the selectee over the
complainant because the selectee had experience in preparing and reviewing
Programs of Instruction (POIs), and he had better communication skills
and leadership qualities, as revealed in his application and interview.
The selecting official further explained that the selectee had the
best interview, job application, and job experience. He stated
that the selectee was the only applicant who correctly answered
the Equal Employment Opportunity questions concerning affirmative
action and disparate treatment. IF at 162-164, 166-168, and 170-171.
The selecting official explained that complainant was not selected
because her interview did not reflect that she had the communication and
leadership skills he was seeking. He stated that, during the interview,
she demonstrated that she knew what was needed to write a POI, but she
did not have experience in writing them. He alleged that she did not
answer the question concerning disparate treatment and that she ranked
number nine of the fourteen candidates. IF at 141-160. The selecting
official denied that the race, sex, or color of the candidates played
a factor in the selection. IF at 49.
Once the agency has met its burden, the complainant must establish that
the agency's explanation was a pretext for discrimination. Complainant
can prove pretext directly by showing a discriminatory reason more
likely motivated the agency or indirectly by showing that the agency's
proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
In a non-selection case, pretext may be found where the complainant's
qualifications are demonstrably superior to the selectee's. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, the agency
has broad discretion to carry out personnel decisions and should not be
second-guessed by the reviewing authority absent evidence of unlawful
motivation. Burdine, 450 U.S. at 259. On appeal complainant states
that she has been interviewed for approximately twenty-three positions
and that they were all filled by Caucasian males. She also asserts
that the selectee does not have the required experience or training for
Quality Assurance, nor is he certified. Moreover, complainant believes
that her 15 years of experience make her a more qualified candidate for
the position. The agency requests that we affirm its FAD.
The Commission finds that complainant did not provide persuasive evidence
that the agency's articulated reason for non-selection was pretextual
nor has she proven that her qualifications were plainly superior to
the selectee's. Complainant instead makes broad assertions about
a disproportionate number of white males getting hired but does not
offer any concrete statistical evidence that would support this alleged
discriminatory hiring practice. In the absence of such evidence or other
evidence suggesting that the agency's explanation is unworthy of belief,
we cannot find in complainant's favor.
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 FAD.
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
October 6, 2005
__________________
Date