Voncille O. Stukes, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionOct 8, 2009
0120080457 (E.E.O.C. Oct. 8, 2009)

0120080457

10-08-2009

Voncille O. Stukes, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Voncille O. Stukes,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120080457

Hearing No. 430-2006-00250X

Agency No. HS-06-CIS-001028

DECISION

On October 31, 2007, complainant filed an appeal from the final agency

decision (FAD) dated November 30, 20071 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

an Immigration Status Verifier at the agency's Atlanta District, Charlotte

Sub-Office facility in Charlotte, North Carolina. On December 7, 2005,

the agency issued Vacancy Announcement CIS-103092-CHL for a Management

and Program Analyst (Quality Assurance) position at said facility.

Complainant applied online for the position, received a score of 97,

and was placed on the final qualifying list. The list, which contained

no scores, was forwarded to the selecting official (SO). SO was free

to select any candidate on the final qualifying list. On March 22,

2006, complainant received a letter of notification confirming her

non-selection, but was given no reason for her non-selection.

On April 19, 2006, complainant filed a formal EEO complaint of

discrimination on the bases of race (Black) and reprisal for prior

protected EEO activity under Title VII when, on March 22, 2006, she became

aware that she had not been selected for the position of Management and

Program Analyst (Quality Assurance), which was advertised under Vacancy

Announcement CIS-103092-CHL.

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 requested

a hearing, but the AJ denied the hearing request on the grounds that

complainant failed to comply with the terms of the Scheduling Notice and

Order by providing a Pre-Hearing Report to the AJ. The AJ remanded the

complaint to the agency, and the agency issued a final decision pursuant

to 29 C.F.R. � 1614.110(b).2

The FAD found that the inquiry into whether complainant had established

a prima facie case of discrimination could be dispensed with here as

the agency had articulated legitimate, nondiscriminatory reasons for

its actions. The FAD found that SO claimed that his selection decision

was based in full on the Recommending Official's (RO) recommendation.

The FAD found that the RO recommended the selectee based on the breadth

of the selectee's experience in military, government, and private sectors

and the selectee's overall superior competence in various other areas.

The FAD then found that complainant failed to produce evidence to

support an inference that the RO was inclined to discriminate on

the basis of race. Further, the FAD found that complainant failed

to establish a causal nexus between her prior EEO activity and her

non-selection sufficient to raise an inference of retaliatory intent.

The FAD found that complainant failed to rebut the agency's reasons

for her non-selection and had offered no evidence proving that her

non-selection was based on race or her prior protected EEO activity.

The FAD therefore concluded that complainant failed to prove that she

was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant requests sanctions against the agency in her

favor. Complainant claims that the agency unreasonably delayed issuing

a final decision after the AJ dismissed complainant's hearing request and

remanded the matter back to the agency in his dismissal order. Further,

complainant disputes the agency's reasons for her non-selection and claims

that the selectee's "superior" qualifications were not relevant for the

appointment to the position. The agency requests that we affirm the FAD.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

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). Complainant

must initially establish a prima facie case by demonstrating that he or

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). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. 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).

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).

In the instant case, the agency has articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, RO claims

that he recommended the selectee because he "possessed a breadth of

experience in the government, military and private sectors." Report

of Investigation (ROI), Ex. 9, RO's Aff. at 3. Further, RO claims

that the selectee "had superior overall competence and capabilities

in communication and presentation skills, management principles,

program and systems development, productivity review, adjudicative

experience, ability to work independently, initiating new projects,

and interpersonal communication." Id. RO claims that he could not

compare the strengths and weaknesses of the selectee's qualifications

with the complainant's because only the specific reasons for selection

are divulged. Id. at 3-4. SO claims that he accepted the recommendation

of the RO and signed the selection certificate designating the selectee

for the position. The Management Assistant (MA) claims that SO was

sent the final qualifying list containing only the qualified applicants'

names and was free to select whomever he believed to be best for the job.

ROI, Ex. 12, MA's Aff. at 4. The District Director (DD) was out on

extended sick leave during the selection process, but claims that she

would not have selected complainant. ROI, Ex. 11, DD's Aff. at 3-4.

DD claims that complainant was later terminated for insubordination and

DD sees no future for complainant at the agency. Id. DD claims that

while she was not involved in the selection process, she concurs with

the selection because of the selectee's proven abilities and demonstrated

interpersonal skills. Id. at 4.

Complainant must now establish, by a preponderance of the evidence,

that the agency's articulated legitimate, nondiscriminatory reasons

were pretext for discrimination. In non-selection cases, pretext may

be found where the complainant's qualifications are plainly superior to

the qualifications of the selectee. See Wasser v. Department of Labor,

EEOC Request No. 05940058 (November 2, 1995). Complainant claims that RO

subjectively concluded that the selectee had overall superior competence

in communication and interpersonal skills while RO failed to mention

complainant's skills. Comp.'s Addendum to Motion for Sanctions at 4.

Complainant claims that she is not required to demonstrate that her

qualifications were superior because the record reflects that management

officials failed to provide a reason for her non-selection given that she

and the selectee had the same score. Id. at 5. Further, complainant

claims that the selectee was interviewed while she was not. Id. at 4.

Complainant claims that in the past, she had been subjected to accusations

of being a threat to management due to her manner of speech and body

posture and claims this is the reason the agency placed emphasis on the

selectee's interpersonal skills. Id.

We have held that it is not our function to substitute our judgment for

that of selecting officials familiar with the present and future needs of

their facility and therefore in a better position to judge the respective

merits of each candidate, unless other facts suggest that discriminatory

considerations entered into the decision-making process. See Shapiro

v. Social Security Administration, EEOC Request No. 05960403 (December 6,

1996) (citing Bauer v. Bailor, 647 F. 2d 1037, 1048 (10th Cir. 1981).

We find that aside from complainant's bare assertions, the record is

devoid of any persuasive evidence that discrimination was a factor in

the agency's decision to not select complainant for the position.3

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the agency's

final decision, because a preponderance of the evidence of record does

not establish that discrimination existed as alleged.

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

10/08/2009___

Date

1 Complainant's request for a hearing was dismissed by the Administrative

Judge and the case was remanded back to the agency on January 10, 2007.

After not receiving a final decision, complainant filed the instant appeal

on October 31, 2007. The agency subsequently issued a final decision

on November 30, 2007. We will accept the appeal as timely filed.

2 We note that on appeal, complainant does not contest the AJ's decision

to deny his hearing request and remand the complaint to the agency.

3 As to complainant's motion for sanctions, while the Commission cannot

approve of the lengthy period it took the agency to issue its final

decision in this matter, we are not persuaded that this delay constitutes

any basis for finding on complainant's behalf with respect to the issues

raised herein.

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0120080457

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120080457