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