0120151978
04-13-2017
Retha W.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Retha W.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120151978
Hearing No. 410-2014-000-69X
Agency No. 12002630287
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 26, 2015 final order. The appeal concerned 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Technician and Assistant Intermediate Agency Program Coordinator at the Agency's Defense Travel System, Marine Corps Recruit Division, in Parris Island, South Carolina.
On October 23, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when:
1. on July 30, 2012, Complainant was not afforded the opportunity to interview for the position of Management Assistant, GS-0344-07, in the G-1 Department of the Activity;
2. On July 30, 2012, the selecting official selected an individual who appeared to be less qualified than Complainant;
3. On August 13, 2012, the selecting official asked Complainant to complete a travel voucher for the selectee and humiliated Complainant by making statements regarding the selectee's work schedule and introducing the selectee to the G-1 staff.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on December 2, 2014. During the hearing, the AJ heard testimony from Complainant and management official who made the selection.
The pertinent record shows that Complainant is an African-American. She held a GS-6 position. She applied for a Management Assistant GS-0344-06 position that was advertised under Vacancy Announcement SE20344-07695819MK3-81314. The selection criteria included knowledge of Microsoft Word, Excel, Outlook, Power Point and the Naval Correspondence Manual. The position reported to the selected official (Caucasian) (RMO1). She was not interviewed and was informed that another individual (Caucasian) was selected. At the time, the selectee was a GS-5.
Fifty-six candidates applied for the position. The Human Resources Specialist (HR) testified that two certificates of eligible candidates were submitted to the selecting official. One certificate was a "VRA certificate" that contained 16 names. The successful applicant was a disabled veteran who was eligible for placement on the VRA certificate. HR also provided a merit promotion list that contained another 40 names. The selecting official reviewed the list of 56 applications and printed ten applications for a closer review and scored the ten applications against a list of qualifications that the selecting official created. Only the five top highest scoring candidates were interviewed. Two of the top scoring finalists were black and three were white.
The selecting official testified that she rejected many qualified applicants, including many she knew from working at the base and she rejected 51 of those without an interview. She rejected Complainant's application without rating Complainant against the criteria that she used to screen the top ten applicants. The selecting official testified that, after the complaint was filed, she rated Complainant's application, but she rated her much lower than anyone who received an interview.
A panel conducted the interviews. The panel consisted of the selecting official and two of her subordinate employees, who sat in on the interviews as advisors. The selecting official testified that she selected the successful candidate because her application listed experience with Access, Excel, PowerPoint and the Naval Correspondence Manual, while the Complainant's did not cite any of these in her application.
The selecting official testified that she introduced the selectee to people with whom she would work in her new position in the same building where Complainant worked. Complainant testified that she believed the person selected was not eligible to be considered for the job. The selecting official testified that she asked the Complainant to help arrange the selectee's travel because it had to be scheduled quickly and the person whom she usually dealt with was out. Complainant believed that this was to done to "rub her face" in her non-selection.
The AJ found that Complainant established a prima facie case of discriminatory non-selection, but the Agency rebutted that presumption and Complainant had not proven by a preponderance of the evidence that the Agency's stated explanation was a pretext for discrimination. With regard to the incident on August 13th, the AJ reasoned that the selecting official "testified credibly that her intentions were purely innocent."
The AJ found in favor of the Agency in his bench decision, dated January 21, 2015. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed. Complainant did not file a brief in support of her appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015). In this case, the AJ's findings are supported by the record. We discern no reason to disturb the AJ's finding, on which the final order is based.
CONCLUSION
Accordingly, for the reasons stated herein, we AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
he time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 13, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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