01A13984
08-29-2002
Teresa M. Havel, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Teresa M. Havel v. Department of Commerce
01A13984
August 29, 2002
.
Teresa M. Havel,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A13984
Agency No. 99-54-00905
DECISION
Complainant timely initiated this appeal from the 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. Complainant alleged in her complaint that she
had been subjected to unlawful retaliation for her prior participation
in the equal employment opportunity (EEO) process when (1) on or about
September 3, 1999, she was not selected for the position of Meteorologist
(WCM), GS-14, advertised under Vacancy Announcement C/NWSN/99016.JLR,
and (2) she was not selected for thirty-six other positions for which
she had applied at the agency between 1993 and April, 1999. For the
foregoing reasons, the FAD is affirmed.
The record contains the following information pertinent to this appeal.
At all times relevant to the agency actions at issue, complainant was
employed by the agency as a Meteorologist, GS-1340-13, at the National
Oceanic and Atmospheric Administration's Norman, Oklahoma, Operational
Support Facility. On September 17, 1999, after she was not selected
for the vacancy described in claim (1), complainant contacted an EEO
counselor with her claims of retaliation, and subsequently filed the
instant complaint. In its letter of acceptance of the complaint, the
agency notified complaint that it was dismissing claim (2) based upon
her failure to timely present the subject nonselection allegations to an
EEO counselor. At the conclusion of the agency's investigation into claim
(1) of the complaint, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or, alternatively, to receive
a FAD by the agency. When complainant failed to respond within the time
period specified in 29 C.F.R. � 1614.108(f), the agency issued its FAD.
In its FAD, the agency concluded that there was no evidence that the
agency's actions as alleged in claim (1) constituted retaliation for
her prior EEO activity, and reaffirmed the dismissal of claim (2).
As for claim (1), the agency found that complainant failed to establish
a prima facie case of retaliation, as she did not present evidence
which showed a causal connection between her prior EEO activity and
the challenged nonselection. The agency noted that complainant alleged
that the 1999 nonselection was retaliation for EEO activity in 1991 of
which the selecting official was aware at the time of the nonselection.
It found that the time lapse between her EEO activity and the nonselection
was too long to establish the necessary nexus between the protected EEO
activity and the alleged retaliatory act.
The agency continued its analysis of the claim, however, finding
that it nevertheless met its burden of articulating a legitimate,
nondiscriminatory reason for its actions. The agency found that the
three agency officials who were primarily responsible for the selection
decision stated in their affidavits to the EEO investigator that their
review of complainant's application materials revealed that she lacked
the relevant experience in weather forecasting and public relations
work to be well-qualified for the position. The agency also found that
while complainant argued that the agency's articulated reason was pretext
for unlawful retaliation, as she believed her experience made her more
qualified than the selectee, she failed to present sufficient evidence
to support her pretext argument. As for claim (2), the agency found
that dismissal was proper based upon complainant's failure to timely
initiate contact with an EEO counselor, and because the claim did not
meet the criteria for establishing a continuing violation, as there was
no indication that the same selecting officials were involved in any of
the challenged nonselections. This appeal followed.
On appeal, complainant contends that the agency's findings regarding her
public speaking experience are incorrect, and challenges the veracity
of the statements provided to the EEO investigator by the selecting
officials. The agency argues that the record clearly shows that the
selecting officials took into account complainant's presentation and
communication skills, but a comparison of her application to that of
the selectee would not lead a reasonable person to conclude that her
qualifications were so superior that some prohibited motive must be
inferred.
In a claim such as that presented by complainant, which alleges disparate
treatment based upon retaliation for participation in the EEO process,
and where there is an absence of direct evidence of such retaliation, the
allocation of burdens and order of presentation of proof is a three-step
process. Hochstadt v. Worcester Found. for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(extending application of the disparate treatment analytical framework
described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973), to claims of retaliation). First, complainant must establish a
prima facie case of retaliation 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.
Kimble v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22,
2001). Next, the agency must articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). If the agency is successful in meeting its
burden, complainant must prove, by a preponderance of the evidence,
that the legitimate reason proffered by the agency was a pretext for
discrimination. Id. at 256. However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
Our review of the record on appeal reveals that, even assuming for the
sake of this appeal that complainant established a prima facie case
of retaliation for her prior EEO activity, the agency articulated a
legitimate, nondiscriminatory reason for its action and complainant
failed to present sufficient evidence to prove that the agency's reason
is merely pretext for unlawful retaliation. As stated above, the agency
presented evidence that complainant was not selected because of her
lack of forecasting and public speaking/public relations experience,
as compared to the selectee. The Commission notes that in nonselection
cases, pretext may be found where the complainant's qualifications are
demonstrably superior to the selectee's. Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). However, an employer has the discretion to
choose among equally qualified candidates. Canham v. Oberlin College,
666 F.2d 1057, 1061 (6th Cir. 1981). Additionally, an employer has
greater discretion when filling management level or specialized positions.
Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
In the instant matter, the record does not support a finding that
complainant's qualifications are demonstrably superior to those of the
selectee on the issues identified by the agency as of greatest importance
to the successful candidate.<1> Nor is there sufficient other evidence
in the record to support her pretext argument. Accordingly, we find
that complainant has failed to establish by a preponderance of the
evidence that she was subjected to retaliation as alleged in claim (1)
of her complaint. We also find that the agency properly dismissed claim
(2), as the record supports the agency's finding that complainant did
not present sufficient evidence to support a continuing violation claim,
and that the claims were otherwise untimely presented to the agency.
See 29 C.F.R. � 1614.105(a)(1) (�An aggrieved person must initiate contact
with a Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45 days of
the effective date of the action.�).
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, it is the decision of the
Commission to 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 29, 2002
Date
1 We note that, as for her contention on appeal that the selecting
officials' testimony lacks credibility, complainant had the opportunity
to elect to prosecute her complaint in a hearing before an EEOC
Administrative Judge (AJ), where she would have had the opportunity to
present witness testimony and cross-examine agency witnesses, and the
AJ would have been able to render findings of fact as to the credibility
of each witnesses' testimony. Complainant did not exercise this option.