01A13059
08-08-2002
Helen D. Jennings, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Helen D. Jennings v. Department of the Treasury
01A13059
August 8, 2002
.
Helen D. Jennings,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A13059
Agency No. 00-4172
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Taxpayer Service Specialist, GS-526-09, in the agency's Accounts
Inventory Group, Customer Service Division, at the Kansas/Missouri Office.
On July 19, 1999, the vacancy announcement was posted for the position
of Senior Associate Advocate, GS-501-9/11, with seventeen positions
available in St. Louis, Missouri. Applicants for the positions were
required to complete a series of questions/statements which were
processed through an automated system to create the Best Qualified
(BQ) list. The record reflects that there were fifty-nine applicants
for the St. Louis positions, including complainant. Complainant did
not originally make the BQ list, but after several applicants on the
BQ list withdrew, complainant was placed on the BQ list with nineteen
other applicants. The applicants on the BQ list were then interviewed
before a three member interview panel, and the same questions were asked
of each applicant. Once the interviews were completed, the panel made
its recommendations to the selecting official who selected seventeen
applicants from the BQ list for the available positions. Of those
selectees, fourteen were White, and three were Black. Complainant was
not among the seventeen applicants selected.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on March 31,
2000, alleging that she was discriminated against on the basis of race
(Black) when on or about February 18, 2000, she was not selected for the
position of Senior Associate Advocate, GS-501-9/11, in the St. Louis
Taxpayer Advocate Office. 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 assuming, arguendo, complainant
established a prima facie case of race discrimination, it articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were pretextual. Specifically, the FAD found that the
first panel member (P1) stated that complainant was weak in her interview.
P1 stated that complainant was difficult to understand when she spoke, and
that although it appeared that complainant had prepared for the interview,
she failed to illustrate that she possessed the type of well-rounded,
cross-functional skills necessary for the position at issue. (Report of
Investigation, page 104). The FAD found that the second panel member (P2)
concurred with P1's statement that complainant was hard to understand
during the interview and that she used poor grammar. P2 further
stated that as she was familiar with complainant's work, she expected
complainant to be stronger in the interview and was disappointed that she
did not do well. (R.O.I., page 117-118). The FAD found that the third
panel member (P3) disagreed with some aspects of P1 and P2s statements.
P3 agreed that complainant was hard to understand, but stated that she
gave good answers and he believed she would have been effective in the
position. (R.O.I., page 92-3). The FAD found, however, that P3 was not
familiar with the duties of the position at issue, and unlike P1 and P2,
he was not familiar with the work of any of the applicants interviewed.
The FAD concluded that complainant failed to show that her non-selection
was the result of discriminatory animus on the part of the agency.
On appeal, complainant reiterates her contentions that: 1) one of the
panel members was familiar with her work; 2) she communicates with
the public regularly and has no problem with clarity; and 3) out of
the nine applicants from her office that made the Best Qualified list,
she was the only Black applicant and the only one who was not selected.
The agency requests that we affirm its FAD.
Complainant may establish a prima facie case of race discrimination
in the non-selection context by showing that: (1) she is a member of
a protected class; (2) she was qualified for the position; (3) she
was not selected for the position; and (4) she was accorded treatment
different from that given to persons otherwise similarly situated
who are not members of her protected group. Williams v. Department
of Education, EEOC Request No. 05970561 (August 6, 1998); Enforcement
Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice
No. 915.002 (September 18, 1996). 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).
In a non-selection case, pretext may be demonstrated by a showing
that complainant's qualifications are observably superior to those of
the selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981);
Williams v. Department of Education, EEOC Request No. 05970561 (August
6, 1998). Here, complainant has not shown that her qualifications are
plainly superior to any of the selectees, nor has she proffered any
persuasive evidence that the agency's legitimate, non-discriminatory
reason for their selections were mere pretext for discriminatory animus.
While P3 states in his affidavit that he would have chosen complainant
for the position over two of the selectees that he felt had interviewed
poorly, we find that the record does not establish that complainant's
qualifications were plainly superior to these two selectees. (R.O.I.,
page 88-90). Further, both P1 and P2 stated that they were familiar
with the work of the two selectees, while P3 was not, and that they felt
strongly that the two selectees would excel in the positions at issue.
(R.O.I., page 121-2, and page 107-9).
While it appears that P3 found the selection process for the position
at issue to have been flawed, we find the record to be devoid of
any persuasive evidence that even if such flaws existed, they were a
pretext for race discrimination. Further, Commission precedent holds
that selecting officials have the discretion to choose from among
equally qualified candidates and that their decision should not be
second guessed by the reviewing authority without evidence of unlawful
motivation. See Fodale v. Department of Health and Human Services, EEOC
Request No. 05960344 (October 16, 1998). 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 (M0701)
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
August 8, 2002
__________________
Date