01985649
03-24-2000
Bonnie G. Clemonts, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Bonnie G. Clemonts v. Department of the Air Force
01985649
March 24, 2000
Bonnie G. Clemonts, )
Complainant, )
) Appeal No. 01985649
v. ) Agency No. 980448
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
)
DECISION
INTRODUCTION
Bonnie G. Clemonts (complainant) timely filed an appeal on July 10,
1998 with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD), dated June 8, 1998, concerning a
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The Commission hereby accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether the agency correctly determined that complainant was not
discriminated against on the bases of race (Black), sex (female), or
reprisal (prior EEO activity) when she was allegedly not notified that
she was being considered for a position, and when she was nonselected
for that position.
BACKGROUND
Complainant was employed by the agency as a Supply Clerk, GS-4.
She filed a formal complaint on June 12, 1997 alleging discrimination
on the bases of race (Black), sex (female), and reprisal when: 1)
she was allegedly not notified in a timely manner that she was being
considered for a promotion to a Supply Technician, GS-2005-05; and 2)
on February 10, 1997, she was nonselected for that position. The FAD
found no discrimination. Its finding was based on the fact that an
attempt was made to notify complainant that she was being considered for
the position, and that complainant's qualifications were not so plainly
superior to the candidate chosen as to warrant a finding of pretext.
This appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). 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). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (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. 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 response to complainant's claim that she was not notified that she
was being considered for the Supply Technician position, we find that
the agency presented evidence that an attempt was made to notify her.
The selecting official, S-1, stated in his sworn affidavit, that he did
not send letters notifying candidates that they were being considered
for the position because the entire selection process was completed in
a single day. Instead, he contacted candidates by telephone and told
them that they were being considered. Complainant was on leave at
the time and did not have an answering machine, so S-1 left a message
with her supervisor asking complainant to see him when she got back.
We find that the agency has articulated a legitimate, nondiscriminatory
reason, namely that there was no time to send a notification letter,
and that complainant could not be reached via telephone. Since the
agency articulated such a reason, the burden returns to the complainant
to demonstrate that the agency's articulated reason was a pretext for
discrimination. We find that the complainant has failed to do so because
she has not provided any evidence to disprove S-1's claim that he tried
to contact her, such as an affidavit from her supervisor. In addition,
there is no evidence in the record to contradict S-1's assertion that he
attempted to notify complainant. Therefore, the agency's determination
that complainant failed to establish that she was discriminated against,
with respect to this claim, was correct.
In response to complainant's claim that she was nonselected for
the position, we find that the agency has articulated a legitimate,
nondiscriminatory reason for the nonselection, namely that the candidate
selected for the position was better qualified than the complainant. S-1
testified in a sworn affidavit that he reviewed and rated the ten merit
promotion candidates' official personnel records, and mechanized career
briefs, and that he was looking for the most experienced candidate. The
selected candidate had significant training, experience as a GS-2005-05,
and he was working in the aircraft support area where 70 percent of
the organization's business originated. Most of complainant's work,
on the other hand, was in document control, where she filed documents.
Since the agency articulated such a reason, the burden returns to the
complainant to demonstrate that the agency's articulated reason was a
pretext for discrimination. We find that the complainant has failed
to do so because she has not demonstrated, nor does the record show,
that her qualifications were so plainly superior to the selectees.
See Hodges v. Navy, EEOC Request No. 05950022 (July 12, 1996) (citing
Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981)). Additionally,
the record contains no other evidence of pretext. Therefore, the
agency's determination that complainant failed to establish that she
was discriminated against, with respect to this claim, was correct.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.