01982838
10-18-1999
Sherri D. Stevens-Mack, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Sherri D. Stevens-Mack, )
Appellant, )
) Appeal No. 01982838
v. ) Agency No. 3-97-3013
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation Administration), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) 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.
Appellant alleges that she was discriminated against on the basis of race
(Black) when she was not selected for the GS-301-05 position of Airport
Area Representative. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a GS-203-07 Personnel Staffing Assistant at an agency facility
in College Park, Georgia. Believing she was discriminated against as
referenced above, appellant sought EEO counseling and subsequently filed
a complaint on November 12, 1996. At the conclusion of the investigation,
appellant requested that the agency issue a final decision.
The FAD found that appellant established a prima facie case of racial
discrimination because she applied and was qualified for the position at
issue but was not selected in favor of someone outside of her protected
class. However, the FAD further found that although the agency engaged
in �practices inconsistent with good management,� appellant failed to
prove that her non-selection was motivated by racial discrimination.
It is from this decision appellant now appeals. On appeal, appellant
reiterates her contention that race was a determinative factor in her
non-selection. The agency requests that we affirm the FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981), the Commission finds that appellant
failed to present evidence that more likely than not, the agency's
articulated reason for not selecting appellant was a pretext for unlawful
discrimination. Initially, we note that the selectee, who had just
graduated from college with a Bachelor of Science degree in Management,
was the daughter of a woman who previously worked in the Atlanta Airport
District Office. The agency's legitimate, nondiscriminatory reason for
selecting the selectee was that she was the best qualified candidate.
Appellant asserts that she was the better qualified candidate for
the position. However, having reviewed the relative qualifications of
appellant and the selectee, the Commission finds that appellant is not
so plainly better qualified than the selectee and that both individuals
were well qualified. When choosing among highly qualified candidates for
a position, employers generally have broad discretion to set policies
and make personnel decisions, and should not be second-guessed by a
reviewing authority, absent evidence of unlawful motivation. Burdine,
450 U.S. at 259. Appellant has not presented evidence, beyond her bare
assertion, that race was a motivating factor in the agency's action.
Appellant also contends and the agency concedes that the selectee was
preselected. We note that while evidence of preselection may operate
to discredit the employer's explanation for its employment decision,
preselection per se does not violate Title VII. See McAllister
v. United States Postal Service, EEOC Request No. 05931038 (July 28,
1994); Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).
Again, appellant has not presented evidence, beyond her bare assertion,
that the preselection was based on race or any other basis prohibited
by Title VII.
Therefore, after a careful review of the record, including appellant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
October 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations