Terry S. Peardon, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 8, 2005
01a54158 (E.E.O.C. Nov. 8, 2005)

01a54158

11-08-2005

Terry S. Peardon, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Terry S. Peardon v. Department of the Army

01A54158

November 8, 2005

.

Terry S. Peardon,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A54158

Agency No. ARFORSC03JAN002

DECISION

Complainant timely initiated an appeal from a final agency decision (FAD)

concerning her formal 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.

Complainant, a former agency employee, was an applicant for the position

of Garrison Operations Manager, GS-304-14, at the agency's Directorate

of Plans, Training, and Mobilization, Fort Gordon, Georgia.<1>

Complainant filed a formal EEO complaint on March 13, 2003. Therein,

complainant claimed that she was the victim of unlawful employment

discrimination on the basis of sex (female) when:

on December 19, 2002, she was not interviewed for the position of Garrison

Operations Manager.

At the conclusion of the investigation, complainant was informed of

the right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

initially requested a hearing but later withdrew the request, and the

agency issued the instant FAD.

In its May 13, 2005 FAD, the agency concluded that complainant failed

to establish a prima facie case of discrimination on the basis of sex.

The agency further concluded that assuming complainant established a

prima facie case of discrimination on the basis of sex, management

articulated legitimate, nondiscriminatory reasons for not interviewing

her for the Garrison Operations Manager position, GS-304-14, as reflected

in a review of the evidence of record discussed below.

The record reflects that the selecting official (SO) received a Resumix

list from the Human Resources office. The Resumix list was comprised

of thirty-five candidates, including complainant, who were identified

as being qualified for the position of Garrison Operations Manager

position, GS-304-14. The SO sought an applicant who �had increased

responsibility that the Army had trust in." Specifically, the SO

stated that the criteria were "hard jobs, the brigade XO, the brigade 3,

battalion commander." After a review of the Resumix list and candidates'

application packages, the SO chose the top thirteen candidates, including

complainant, for further consideration. The SO then selected the top

five candidates with strong operational background to be interviewed for

the subject position. Complainant was not one of the top five candidates

to be interviewed. The SO then established a panel comprised of three

panelists, and instructed the panelists to develop interview questions.

One of the top five candidates withdrew from further consideration; and

another candidate was not considered after the panel made a determined

that the candidate would not be interviewed. The SO was on the panel

with the three panelists that interviewed three top candidates.

Further, the SO indicated that he chose the selectee for the subject

position, finding him the best qualified candidate. Specifically, the

SO stated that the selectee had worked as a Deputy Brigade Commander,

Brigade S3 and Battalion Executive Officer. The SO stated that he did not

select complainant to be interviewed because he found that complainant

did not have the quality control experience that the SO was seeking.

The SO further stated that complainant "just didn't compete against

people who . . . have gone through the system and competed and did well

in the hard jobs."

The SO acknowledged that complainant previously worked as the Director

of Plans, Training, and Mobilization (DPTM) which converted to Garrison

Operations Manager position, the subject position in the instant case.

The SO stated that the former DPTM position "was basically lower level

and less important when [complainant] had it and has evolved." The SO

stated that "it was a very weak association of independent directorates

and . . . I wasn't very impressed with the operation or the structure at

the place." The SO stated that the subject position has since evolved

significantly and after the terrorist attack on September 11, 2001,

with increased responsibilities and requirements.

The record also reflects that one of the three panelists (P1) stated that

he and another panelist (P2) implemented the interview questions for the

five candidates. P1 further stated that although the SO selected five

candidates to be interviewed, he (P1) and P2 noted that complainant used

to be a DPTM. They suggested that the SO speak with several employees

with whom complainant had previously worked in DPTM. P1 stated that

because he previously worked with complainant in DPTM, SO asked him what

it was like working with her, and that he told the SO that complainant

"was argumentative." P1 stated that he shared this opinion with the

SO because the SO had a right to be aware of his opinion. However, P1

also encouraged SO to "go to the DPTM [employees] and other people on

post that may have worked with [complainant] and get their reaction."

P1 stated that the panel did not discuss the candidates' sex during the

selection process.

The record further reflects that P2 stated that he and P1 had a

conversation with the SO during the selection process, wherein he and

P1 indicated that the SO might want to further consider complainant

because she was not on the list of top five candidates to be interviewed.

P2 stated that he understood that the SO spoke to some parties, but that

the SO did not add complainant to the list to be interviewed "because

of the negative reports that he got." P2 stated that while he used to

work with complainant, he never had any confrontations with her.

The record also reflects that the Director of Human Resources (Director)

stated that the selectee was chosen for the subject position based on

his experience and in-depth knowledge gained during his military career.

The Director further stated that the selectee's work experience reflects

the following selection factors: responsibility for staff functions in

current operations, force protection, range operations, Army Reserve,

National Guard and non-tenant support; direct oversight of all budget,

logistics, personnel, readiness and training operations; mobilization

experience; briefing experience; cost/economic analysis experience;

plans, coordinates and supervises work; and education.

Finally, the agency found that complainant did not establish that more

likely than not, management's articulated reasons were a pretext to

mask unlawful discrimination. Complainant argued that the selectee was

preselected; however, the SO stated that there was no preselection.

The SO stated that prior to the vacancy announcement of the subject

position, he only encouraged selectee and a female Lieutenant Colonel to

apply for the subject position. With respect to complainant's argument

regarding preselection, P1 stated that this assertion was not true.

Furthermore, P1 stated that the vacancy announcement for the subject

position was "wide open; anybody could have got it."

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).

Upon review of the record, the Commission finds that the agency

articulated legitimate, nondiscriminatory reasons for its employment

actions, which we determine were not persuasively rebutted by

complainant. Complainant has not demonstrated that the agency's

articulated reasons for its employment actions were a pretext for

discrimination.

Accordingly, the agency's final decision finding no discrimination

is AFFIRMED.

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

November 8, 2005

__________________

Date

1The record reflects that from July 1998 to July 2000, complainant

worked as the Director of Plans, Training, and Mobilization (DPTM)

which converted to Garrison Operations Manager position.