01983505
05-24-2001
Christine L. Crivello, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Christine L. Crivello v. Department of Labor (Employment Standards
Administration)
01983505
May 24, 2001
.
Christine L. Crivello,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01983505
Agency No. 6-03-071
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 Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleged that she was discriminated against on
the bases of sex (female), age (41), and disability (diabetes and other
ailments) when she was informed on November 9, 1995, that she was not
selected for one of five (5) positions as a Workers' Compensation
Assistant (WGA), GS-303-5, advertised under Vacancy Announcement
No. PH-95-168.
The record reveals that during the relevant time, complainant was
employed as an Office Automation Clerk, GS-3, at the agency's Johnstown,
Pennsylvania facility. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on May 7, 1996. 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 the agency had articulated
legitimate, nondiscriminatory reasons for the selection decisions,
namely that the selectees (STs) had better communications skills than did
complainant, who also had problems maintaining the quality and quantity
of her work and learning and comprehending new tasks and skills.
On appeal, complainant contends that the above reasons for her
nonselection have no merit, in that she had received a grade of �B�
when taking a course in public speaking at college, she had received a
performance evaluation of at least�Highly Effective� each year for the
past 10 years, and one year had received an �Outstanding� evaluation.
She then points out that these very favorable evaluations do not reflect
that she had any trouble learning new skills and tasks, and that when the
Medical Scheduler was on leave, complainant became responsible for the
scheduling of medical tests and was never told that her performance was
unsatisfactory. Finally, complainant asserts that the agency Program
Analyst did not like obese people, one of complainant's ailments,
that the Analyst had previously stated that the agency had to protect
the positions of two of the job candidates, that on the day of the job
interviews, she had called one of the selecting officials (SOs), and that
these two job candidates were subsequently selected for the WGA positions.
In its brief in opposition to complainant's appeal, the agency notes that
the SOs unanimously found that complainant was not as well qualified as
the STs who were articulate and skilled in communicating. Complainant's
communicating skills, in contrast, were found to be below those of the
STs as judged by her answers to interview questions, her application,
and the comments of her past supervisors.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981); and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue); the Commission agrees with the agency that complainant
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination. In
reaching this conclusion, we note that although complainant's performance
evaluations were rated �Exceptional,� so were the performance evaluations
of the STs. In this regard, we observe that complainant's exceptional
ratings were all for her position as an Office Automation Clerk, GS-3,
where the emphasis was more on clerical rather than communication skills.
In addition, inspection of the job applications reveals that those of
the STs were better organized and more to the point than that of the
complainant, as were their answers to the same interview questions,
which again is evidence of greater communication skills by the STs.
Finally, the comments of complainant's present and past supervisors,
and the personal knowledge of complainant's capabilities by the SOs make
it clear by a preponderance of the evidence that complainant was not as
well qualified as the STs for the WGA position.
Therefore, after a careful review of the record, including complainant's
other 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 (M0900)
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
May 24, 2001
Date