01972308
03-31-1999
Giselle Bradley, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Giselle Bradley, )
Appellant, )
) Appeal No. 01972308
v. ) Agency No. 95-62306-002
) Hearing No. 130-96-8056X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges she
was discriminated against when, on or about July 24, 1994, she was not
certified as a best qualified candidate for the position of Secretary,
GS-318-06, and was then not selected for that position. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was
employed as a GS-318-05 Secretary at the agency's Stennis Space Center,
Mississippi. The agency provided notice of the Secretary position to
be filled under the Merit Staffing Program (MSP), and the applicants
submitted an SF-171, most recent Performance Appraisal and answers
to Knowledge, Skills and Abilities (KSA) criteria. The Recommending
Official (RO) used a list of six (6) KSA's for evaluation in rating each
applicants' package, and relied on a subject matter expert to review
each application and give each KSA a numerical score. After receiving
the scores, a civilian Personnel Specialist determined which candidates
made the �Best Qualified List� (BQL) based on guidelines from the MSP,
and those applicants who received a total score of 24 points out of 30
were placed on the BQL certificate of eligibles to be forwarded to the
Hiring Official. Appellant's application package was scored as 22, due
to her lack of experience at the division level and typographical errors
(TE). As a result, appellant was not placed on the BQL certificate,
and thus was not interviewed or selected for the Secretary position.
The agency stated that there were three (3) applicants (two White women;
one Black woman) placed on the BQL certificate, all of whom received
higher scores than appellant due to their experience working at the
division level, and the selectee (White female) was ultimately chosen due
to her superior qualifications. The RO stated that the applications of
other candidates, including the selectee, included TE, and that while
she may have made mistakes in ranking applicants, appellant received
higher scores in several KSA's than did White applicants.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on October
14, 1994. At the conclusion of the investigation, appellant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding no discrimination.
The AJ concluded that appellant established a prima facie case of race
discrimination, as she met the requirements for inclusion on the BQL
certificate but was not certified, while similarly situated applicants
not a member of her protected class were. The AJ further found that
appellant established a prima facie case of retaliation discrimination,
as the agency was aware of her prior EEO activity when she was not placed
on the BQL certificate, and appellant established a causal connection
between the protected activity and her nonselection.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that appellant did
not receive a score sufficient to be placed on the BQL certificate due to
her lack of experience at the division level, application TE and as her
prior experience was unsupported in the SF-171. The AJ found that the
agency's statement that appellant received a lower score due to TE was
pretextual, as the selectee's materials also had errors but she was not
given a lower score. However, the AJ further found that appellant did not
establish that the agency's other articulated reasons were a pretext to
mask unlawful discrimination or retaliation, as agency testimony credibly
established that applicants with division experience were consistently
accorded more credit regardless of race or prior EEO activity. Finally,
the AJ found that although pretext was found, appellant was given the
lower score due to an error by the RO, rather than as the result of
discriminatory animus or retaliation.<1> The agency's FAD adopted the
AJ's RD. Appellant makes no new contentions on appeal concerning the
merits of the case, and the agency requests that we affirm the FAD.<2>
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that, while one of
the agency's reasons for not placing appellant on the BQL certificate was
pretextual in nature, the evidence fails to establish that this action was
motivated by discrimination based on race or retaliation. See St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993). We thus discern no basis
to disturb the AJ's findings of no discrimination which were based on a
detailed assessment of the record and the credibility of the witnesses.
See Gathers v. United States Postal Service, EEOC Request No. 05890894
(November 9, 1989); Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987);
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). Therefore, after
carefully reviewing appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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 31, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 The record reflects
that had appellant not been given a lower score
for TE, she still would not have been qualified
for the BQL certification.
2 Appellant contends on appeal that the AJ erred in rejecting her request
to call the agency's counsel as a witness at the hearing. The Commission
notes that the exclusion of witnesses by the AJ is a matter of discretion,
and appellant has failed to establish that the AJ abused his discretion
or that the testimony, if allowed and credited by the AJ, would have
altered the RD. Tedeschi v. USPS, EEOC No. 01871031 (April 20, 1988).