Vernetta Foster, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 21, 2000
01a03163 (E.E.O.C. Nov. 21, 2000)

01a03163

11-21-2000

Vernetta Foster, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Vernetta Foster v. Department of the Navy

01A03163

November 21, 2000

.

Vernetta Foster,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A03163

Agency No. DON 4-63043-010

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.<1> The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated

against on the bases of race (Black), sex (female) and reprisal (prior

EEO activity) when on March 4, 1994:

(1) Complainant was not selected for the position of Child Development

Program Administrator, GS-1701-09. Even though the application went

through the system and came out among the highly qualified, complainant

never received equal consideration in the merit staffing program on

the local level;

Complainant was not allowed to perform duties as described in her job

description;

Complainant alleged reprisal in that she became aware that the Child

Development Program Administrator position changed from the 1702 series

to the 1701 series, which is a more professional level and to which

she was presently assigned. Complainant alleged this action extended

the area of consideration to open competitive vacancy;

Complainant alleged reprisal because she was not given an equal

opportunity. She alleged that the Selecting Official (SO) did not

objectively consider her as evidenced by the fact that he said he would

hire from outside DoD when filling the position of Child Development

Program Administrator, GS-1701-09; and

Complainant went to management to discuss her not being supported as

the trainer and being subjected to purportedly discriminatory statements

by the selecting official, his assistant, and the Child Care supervisor.

The record reveals that during the relevant time, complainant was employed

as a Child Development Training and Curriculum Specialist, GS-1701-07,

at the agency's Naval Air Station, Meridian, Mississippi. Believing she

was a victim of discrimination, complainant sought EEO counseling and

subsequently filed a formal complaint on May 23, 1994. 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 concluded that

complainant failed to prove by a preponderance of the evidence that she

was discriminated against in the matters alleged.

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a Title VII case

alleging discrimination is a three-step process. Complainant has the

initial burden of establishing a prima facie case of discrimination. If

complainant meets this burden, the burden shifts to the agency to

articulate some legitimate, nondiscriminatory reason for its challenged

action. Complainant must then prove, by a preponderance of the evidence,

that the legitimate reason articulated by the agency was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973).

In order to establish a prima facie case of discrimination for an

allegation of reprisal, complainant must show: 1) that she engaged in

protected activity; 2) that the alleged discriminating official was aware

of the protected activity; 3) that she was disadvantaged by an action of

the agency contemporaneously with or subsequent to such participation;

and 4) that there is a causal connection between the protected activity

and the adverse employment action. Hochstadt v. Worcester Foundation for

Experimental Biology, Inc. ,425 F. Supp. 318, 324 (D. Mass), affirmed,

545 F.2d 222(1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,

86 (D.C. Cir. 1985);

Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th

Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

This established order of analysis, 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 articulates a legitimate,

nondiscriminatory reason for the actions at issue, the factual inquiry can

proceed directly to the third step of the McDonnell Douglas analysis,

that is, the ultimate issue of whether complainant has shown by a

preponderance of the evidence that the agency's actions were motivated

by discrimination. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 713-714 (1983).

The Commission finds that the agency articulated legitimate,

nondiscriminatory reasons for its actions. The agency explained that

Supervisor 2 reviewed the applications for the position at issue that

were submitted with the OPM certificate and gave his comments on the

candidates' qualifications to Supervisor 3, who was the selecting

official (SO). Supervisor 2 made no recommendations on the selection.

The SO based his selection on his review of the OPM certificate and the

applications, discussions with the Bureau of Naval Personnel (BUPERS)

in Washington, D.C., and discussions with the Commanding Officer.

The SO did not conduct any interviews. The SO indicated that BUPERS

did not give favorable consideration to complainant or one of the other

candidates (female, race unknown), but did indicate that the selectee

had a strong background in training and curriculum development and was

highly qualified.

The burden returns to complainant to demonstrate that the agency's

reason was a pretext for discrimination, that is, that the agency

was more likely motivated by discriminatory reasons. Burdine, 450

U.S. at 253. Complainant can do this either directly, by showing that 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 demonstrated in a number of ways, including a showing

that a complainant's qualifications are plainly superior to those of

the selectee. Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981).

In an attempt to show pretext, complainant claims that her non-selection

for the position was the result of a pattern of discriminatory and/or

retaliatory conduct by management that effected the terms and conditions

of her employment. Complainant argues that this is evidenced by the

fact that she was not named Acting CDC Director when the incumbent

was reassigned despite the terms a settlement agreement in a prior

EEO complaint that enabled her assume that duty;<2> that she was more

qualified than the person named Acting Director; that she had been set up

to fail from the beginning, as evidenced by the CDC Director's efforts

to block anything that would have reflected complainant's success;

and the SO's acceptance of the Acting CDC Director's �fabrications.�

Complainant failed to show pretext by the fact that she was not named

Acting CDC Director despite the terms a settlement agreement of a prior

EEO complaint. Complainant rendered that settlement agreement moot

when she reopened the complaint on May 7, 1993, alleging that management

failed to implement all of the agreements provisions.

Complainant also failed to prove that her qualifications were plainly

superior to that of the selectee. Supervisor 3, the SO, considered

complainant's application along with the others. The SO indicated that

he wanted someone with a fresh perspective on interpersonal relationships

within the department and contacted BUPERS for their input on the two

non-local candidates. When BUPERS gave a negative report on one of the

candidates, the selection came down to the complainant and the selectee.

The SO acknowledged that he wanted to hire someone outside of the command

because of the internal conflicts at the CDC, noting that the complainant

was very argumentative and contentious in dealing with individuals and

that she did not accept direction well.

Complainant also failed to prove that she had been �set up to fail� by

the former CDC Director nor did she prove that the Acting CDC Director

made �fabrications� about complainant to the SO. The consensus among the

complainant's witnesses was that the former CDC Director's management

style created problems with the staff and the parents of the children

at the CDC. They observed that the former CDC Director and complainant

disagreed and argued over the way things were to be done. One witness

indicated that the former Director treated everyone the same and that

the complainant was aggressive in wanting things done her way and

overly sensitive if her demands were not met. The record indicates

that there was a confrontational relationship between complainant and

the Acting CDC Director. The record shows that the conflict centered

on the Acting CDC Director's alleged reluctance to make changes and

complainant's refusal to agree with anything unless it was her idea.

Because of these conflicts, the SO transferred both the complainant and

the Acting CDC Director outside of the CDC. Supervisor 1 affirmed that

complainant's conflicts with the Acting CDC Director was negatively

impacting on the welfare of the children at the agency.

Both Supervisors 1 and 2 pointed out that the change in job series for

the Child Development Center Director position from 1702 to 1701 was

made by BUPERS and not at the local activity level. There is no evidence

that the change in job series was done in retaliation for complainant's

prior EEO activity.

While acknowledging that he said he would hire from outside DoD when

filling the position in question, the SO stated that he did not mean

that persons within the system would not be objectively considered for

the position. He made it clear that complainant was considered for

the position but was not selected because of the conflicts she had with

management, not because of the race, sex, or reprisal discrimination.

Finally, complainant alleged that she was subjected to discriminatory

comments when she went to management to discuss not being supported

as the trainer. She alleged that the SO stated, �You are mad because

you were not hired as the Director;� that Supervisor 2 asked, �How many

complaints have you filed� and �I have a record of you going to EEO;� and

that Supervisor 1 said, �I'm sorry I wasn't more supportive.� The SO

did not recall making that statement or any similar statement in which

he could have made a statement in that context. He stated that he did

ask complainant why they were meeting and believed it was because she

had not been selected as the CDC Director. Supervisor 2 acknowledged

making a statement to complainant that she was not on the job on many

occasions when she was needed but was at the EEO Office without having

notified her supervisor. He maintained that complainant took his

statement out of context. Supervisor 1 acknowledged that he probably

told complainant he was sorry he was not more supportive. He maintained,

however, that he felt he had supported her but probably, unknowingly,

had not communicated enough with her.

In light of the above, the Commission finds that complainant failed to

present evidence that more likely than not, the agency's articulated

reasons for its actions were a pretext for discrimination. 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 (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

November 21, 2000

__________________

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 shows that complainant and management signed a settlement

agreement in a prior EEO complaint on February 3, 1993, that provided

in part that complainant would have the opportunity to participate in

daily activities and decisions that would prepare her to assume the CDC

Director's duties in the Director's absence. However, when the incumbent

CDC Director was reassigned, another individual was named Acting Director.

Supervisor 3 acknowledged that he did not consider placing complainant as

the Acting Director because she had problems accepting directions from her

supervisor and basically wanted things her way. Supervisor 3 described

the Acting Director as dedicated, well-organized, and professional,

and noted that she

had an outstanding reputation throughout the Navy's child development

program system for one of the best child care programs in the country.