01996112
02-08-2002
Denise A. Thompson, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Denise A. Thompson v. Department of the Army
01996112
02-08-02
.
Denise A. Thompson,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01996112
Agency No. SAN97AR0808E
Hearing No. 360-97-8229X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has established by
preponderant evidence that the agency discriminated against her on the
bases of age (50) and reprisal (prior EEO activity)<1> when she was not
selected for the position of Budget Analyst, GS-11 (the Position).
BACKGROUND
The record reveals that complainant, a Budget Analyst, GS-9, at the
agency's facility in Fort Bliss, Texas, filed a formal EEO complaint
with the agency on September 6, 1996, alleging that the agency had
discriminated against her as referenced above. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
age discrimination because the selectee, not in her protected class, was
selected for the Position. The AJ also found that complainant established
her prima facie case of reprisal discrimination. The AJ further concluded
that the agency articulated legitimate, nondiscriminatory reasons for its
actions. The AJ noted that the record showed Financial Management Officer
(complainant's second-line supervisor) selected three individuals for
the selection panel (Panelist 1, Panelist 2, and Panelist 3). Panelist 1
worked in the office with the vacancy and Panelists 2 and 3 were GS-12's
within the agency and had budget experience. The AJ found that Panelist 2
developed the idea of a matrix listing the factors to be evaluated by the
panel. The Panelists agreed upon the factors and the weights for each.
They then reviewed the application packages and official personnel files
for the six best qualified candidates and two other candidates who were
on the referral roster. The Panelists assigned points to each factor.
The Selectee received the highest number of points out of the eight
applicants; complainant had the seventh highest score. Based upon
their review, the AJ found that the agency articulated a legitimate,
nondiscriminatory reason for its action in that the selection panel
chose the candidate, the Selectee, with the most points for the Position.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful age
discrimination and/or retaliation. Complainant argued that the Panelist
1 weighed two factors, education and leadership, to disadvantage her.
She stated that education was given only ten percent weight which she
felt was a disadvantage to her since she has a master's degree and the
Selectee did not. Complainant also argued that she was given no points
by Panelist 1 for leadership even though she served as a team leader.
The AJ concluded the Selection Panel determined the matrix factors and
appropriate points was made prior to receiving the list of applicants.
Therefore, the AJ determined that the Panelists did not try to shape the
selection process in favor of a particular candidate. Complainant also
alleged that the Selectee was groomed for the Position by Panelist 1.
The AJ found that complainant failed to present any evidence that this
was the case or that Panelist 1 influenced the other Panelists to giving
the Selectee more credit.
Complainant also claimed that the Financial Management Officer favored the
Selectee because she favored interns who complainant argued were young and
right out of college. The AJ found that the Financial Management Officer,
after selecting the Panelists, provided no input in to the selection
process and did not show any preference for the Selectee. Finally,
complainant argued that she was not given the priority consideration for
the Position she should have received pursuant to a settlement agreement
involving a prior EEO complaint. The AJ determined that the Panelists
gave complainant priority consideration but requested the full list of
qualified candidates from which to chose.<2> The AJ also noted that the
Panelists decision to request a full list of candidates was not motivated
by a discriminatory animus. Therefore, the AJ concluded that complainant
failed to establish her claim of discrimination based on age and reprisal.
The agency's final decision implemented the AJ's decision. On appeal,
complainant, through counsel, argues that the AJ's recommended
decision and the agency's adoption of the decision were incorrect.
Complainant claims that the AJ failed to consider the weight of her
claims that the agency officials took steps to ensure that she would
not be selected for the Position. Complainant also pointed out that she
and Panelist 1 did not get along well and they would have disagreements
erupting in the office. She argues that the Selectee had been groomed
for the Position by Panelist 1. Complainant also alleges that the
agency's failure to provide her with priority consideration breached the
settlement agreement. She noted that she did not become aware of any
breach of settlement until she learned more about the selection process
through the EEO complaint at hand.<3> In response, the agency requests
that we affirm its final decision.
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's age. We discern no basis to
disturb the AJ's decision.
CONCLUSION
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 agency's
final decision.
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
___02-08-02_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record indicates that complainant filed a prior EEO complaint
alleging discrimination in violation of the ADEA.
2 The record indicates that the Panelists were given a second priority
consideration for another candidate, but again, they requested the full
list of candidates for the Position.
3 We note that the breach of settlement issue is improperly raised
before the Commission on appeal. Complainant must notify the EEO
Director in writing regarding the claim of breach of settlement. See 29
C.F.R. � 1614.504. The Commission directs complainant to submit her
claim within fifteen days of the date she receives this decision. The
agency is advised that if complainant initiates such contact within the
fifteen day time period, the date complainant raised these issues in her
appeal shall be deemed to be the date of initial EEO contact unless she
has already contacted the EEO Director regarding this issue, in which
case the earlier date should serve as the contact date.