01983249
02-15-2001
Valerie Hawkins, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Valerie Hawkins v. Department of Defense/Defense Logistics Agency
01983249
February 15, 2001
.
Valerie Hawkins,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01983249
Agency No. XL97042
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of race (African-American), in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> Complainant
alleges she was discriminated against when she was not selected for
the position of GS-1101-11 Industrial Property Management Specialist
(IPMS). The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was
employed as a GS-1106-06 Procurement Technician assigned to the agency's
Defense Contract Management Command (DCMC), Technical Assessment Group,
in Baltimore, Maryland. Complainant alleged that she applied for the
IPMS position located at the DCMC Baltimore's Contract Systems Area
in Manassas, Virginia (to be filled at the GS-5 or GS-7 level), was
interviewed, was subsequently rated by the selection panel as a �best
qualified� candidate, but ultimately was not selected. Complainant later
found that two White applicants were selected for IPMS trainee positions
at the GS-5 grade level. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint
on June 24, 1997. At the conclusion of the investigation, complainant
requested that the agency issue a FAD.
The FAD concluded that complainant established a prima facie case of race
discrimination, as she demonstrated that two similarly situated employees
not in her protected class were selected and she was not. The FAD then
considered the method by which the selecting panel rated the applicants
and noted that the panel referred five candidates (two White, complainant
and two with race unknown) to the Selecting Official (SO) in alphabetical
order, as the best qualified candidates, with no recommendation for the
selection. The FAD noted that the EEO Counselor was unable to contact
the SO for an explanation of her selections because the SO was on sick
leave during the counseling phase and that the EEO Investigator also
was unable to contact the SO, who had resigned from federal employment
effective July 5, 1997. Accordingly, the record was silent regarding
the reasons why the SO chose the selectees over complainant or the other
two candidates. After comparing the qualifications of the candidates,
the FAD noted that the SO chose both selectees from the GS-05 Referral
and Selection Certificate, which complainant was not on,<2> and that �in
the absence of a justification from the [SO] for the selection actions in
dispute...we find that the complainant's arguments that she was the best
qualified candidate for the position is not supported by the record.�
As a result, the FAD found that complainant failed to establish that she
was discriminated against when she was not selected for an IPMS position.
Complainant reasserts on appeal that she was not chosen for the position
at issue due to her race, while the agency seeks affirmance of the FAD.
Allegations of disparate treatment are analyzed under a tripartite
evidentiary framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). After a careful review of the record, the
Commission agrees with the FAD's finding that complainant established
a prima facie case of race discrimination, as complainant is a member
of a protected group, she applied for and was determined to be one of
five �best qualified� candidates for the IPMS position, but two persons
outside of complainant's protected group were selected for the positions
in question while complainant was not.
Once a prima facie case of discrimination has been established, the
burden of production shifts to the agency to articulate a legitimate,
nondiscriminatory reason for the employment decision at issue, and
thereby, rebut the prima facie inference of discriminatory disparate
treatment. McDonnell Douglas, supra. The agency need not persuade the
trier of fact that it was motivated by the proffered reason, but may rebut
the presumption of discrimination by clearly setting forth its reasons for
favoring the employees outside complainant's protected class. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 254-255 (1981);
see also Brooks v. United States Postal Service, EEOC Request No. 05930625
(May 19, 1994); Toney v. Dept. of Transportation, EEOC Appeal No. 01913363
(January 27, 1992). The agency's explanation must be sufficiently clear
and specific such that a complainant has a full and fair opportunity to
demonstrate that the agency's proffered explanation is a pretext for
discrimination. Burdine, supra, at 255-256; Parker v. United States
Postal Service, EEOC Request No. 05900110 (April 30, 1990) (citing
Burdine, 450 U.S. at 256); see also Hammons v. Department of Housing
and Urban Development, EEOC Request No. 05971093 (March 5, 1999).
The Commission has held that while the agency's burden of production is
not onerous, the agency must nevertheless make some effort to furnish
specific, clear and individualized explanations for the treatment accorded
the effected employees. Brooks, supra. The Commission finds that the
agency met its burden of articulating legitimate, nondiscriminatory
reasons for its actions. A review of the record establishes that the
selection panel determined the five �best qualified� candidates and
referred these candidates to the SO in alphabetical order. Although the
FAD correctly stated that there is no showing in the record as to the
exact reasons the SO chose the selectees over complainant, a review of
the record establishes that the SO's criteria included the applicants'
work experience, education, training, awards, interviews by the selection
panel and past supervisor's recommendations. Investigative Report,
at Exhibit 20. The record further reflects that complainant concedes
that she did not perform well at the interview, and the testimony of
members of the selection panel demonstrates that complainant failed to
provide adequate answers to many of the panel's questions. In addition,
the record reflects that while complainant's application does not reflect
a college degree, one selectee had forty-seven credits towards a college
degree, while the other selectee possessed an Associate Degree. Finally,
while complainant was rated as �Highly Successful� with a total raw
score of 3.8 for her performance during the period January 17, 1995
through March 31, 1996, both selectees were rated �Exceptional� for
roughly the same period, with one selectee having a total raw score of
5.0 and the other 4.5. We therefore find that the agency has satisfied
its burden of articulating legitimate, nondiscriminatory reasons for
choosing the selectees over the complainant for the positions at issue.
The Commission further finds that complainant has failed to establish
that it was more likely than not that the agency's articulated reasons
for not selecting complainant were a pretext for discrimination.
Therefore, after a careful review of the record, including evidence not
specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 15, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record reflects that before the selection panel referred the five
�best qualified� candidates for the IPMS position to the Selecting
Official, the agency's Human Resources Directorate placed ten of the
original applicants' names on a GS-05 Referral and Selection Certificate,
while four names, including that of complainant, were placed on a GS-07
Referral and Selection Certificate.