0120091790
08-03-2009
Verlean Mauldin, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Verlean Mauldin,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091790
Hearing No. 410-2008-00367X-PD
Agency No. ARSTEWART07JUL03012
DECISION
Complainant filed an appeal from the agency's February 2, 2009 final
order 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).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
applied to work as a Child and Youth Program Assistant at the agency's
Child Development Center in Fort Stewart, Georgia.
On February 11, 2008, complainant filed an EEO complaint claiming that
she was discriminated against on the bases of race (black) and color
(black). The agency, by letter dated, February 15, 2008, accepted the
following claims:
1. on or about February 7, 2008, complainant received a notification
letter in the mail stating she was not selected for the Child and Youth
Program Assistant, CC-1702-1/02 position;
2. on January 15, 2008, complainant was notified by an agency
employee to attend a Program Review Board meeting on January 16, 2008,
and an agency employee apologized to complainant because the application
sat on her desk since September 2007; and,
3. on January 16, 2008, complainant met with the Program Review
Board and was asked questions like "how do you feel about working with
white children?" and "how do you feel about working with white parents?".
The record reflects that complainant applied for a Child and Youth Program
Assistant position with the agency, and disclosed her robbery conviction
in 1992 on her application. After her application was selected by the
Director of the Child Development Center (SO1), on September 24, 2007, as
a qualified applicant to whom an offer could be extended, a Program Review
Board (PRB) was convened on January 16, 2008, to interview complainant
and other candidates selected by SO1 who had negative information in
their backgrounds. By letter from the PRB to the Director of Morale,
Welfare, and Recreation (DMWR) dated January 24, 2008, the PRB stated
that complainant was "defensive and hostile" during the meeting with the
PRB and complainant "was not open to discuss the incident in any detail."
The PRB did not recommend complainant for the position but did recommend
another black female, interviewed on the same day, who had a misdemeanor
conviction.
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 and the AJ held a hearing on January 14, 2009 and
subsequently issued a decision finding no discrimination. The AJ found
that even if complainant established a prima facie case of discrimination,
the selecting official for the position at issue stated that she would
not hire someone with a felony conviction.1
The agency, on February 2, 2009, issued a final order adopting the
AJ's finding that complainant failed to prove that she was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the AJ was biased and that his
decision finding no discrimination was improper. Complainant also
asserts that during her meeting with the PRB on January 16, 2008 she was
asked questions such as "[h]ow do you feel about working with Caucasian
children and parents?".
In response, the agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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).
Assuming arguendo that complainant established a prima facie case of
race and/or color discrimination, we find that the agency articulated
a legitimate, nondiscriminatory reason for its decision not to hire
complainant. The DMWR testified at the hearing that she never has
and never would hire someone with a felony conviction to work in this
position. Hearing Transcript (HT) at 38. Specifically, DMWR stated
that "I am not knowingly going to hire somebody who has a felony in
their background in any of my activities, but particularly in Child
and Youth Services. That's a sensitive area where you have ultimately
parental concerns about the individuals that work in that area." Id.
In addition, DMWR asserted that she was not aware of complainant's race
at the time she made her decision not to hire complainant. HT at 43.
The Commission further finds that complainant failed to establish, by
a preponderance of the evidence, that the agency's articulated reason
for its action was pretext for discrimination. Although complainant
states that she was asked questions about working with parents and
children not of her race or color, members of the PRB testified that
these questions were asked in response to a statement that complainant
made that she was wrongly convicted by a group of people that were not
her peers (white people). HT at 11. At the hearing, the PRB member
who asked complainant about working with Caucasian parents and children
testified that she asked this question to clarify whether complainant
would be able to work with the diverse population group in the Child
Development Center because complainant had just stated that the jury
that convicted her in 1992 was not made up of her peers. HT at 31.
Based on the specific circumstances of this case, we do not find that
complainant established, by a preponderance of the evidence, that the
questions asked by the PRB indicate that the agency's articulated reason
for complainant's nonselection was pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final order implementing the AJ's finding of no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 3, 2009
Date
1 Although the AJ's decision fails to expressly reference color as a
basis, we note that the agency, in its final order dated February 2,
2009, addressed both race and color. In the instant decision, we include
color as a basis in our analysis.
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0120091790
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091790