01971368
05-13-1999
Gail Laber, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Gail Laber, )
Appellant, )
) Appeal Nos. 01971368
v. ) 01971369<1>
) Agency Nos. XI-95-004
William S. Cohen, ) XI-95-006
Secretary, ) Hearing Nos. 100-95-7882X
Department of Defense, ) 100-95-8047X
(Defense Logistics Agency), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination, in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The issues presented are:
(1) whether appellant was discriminated against on the bases of religion
(Orthodox Jewish), sex (female), and reprisal (EEO activity by spouse),
when she was not selected for a GS-0341-12 Administrative Officer
position, located in Israel, under Job Opportunity Announcement
No. 94-113, on or around December 20, 1994; and
whether appellant was discriminated against on the bases of religion
(Orthodox Jewish), sex (female), reprisal (prior EEO activity), and age
(DOB: 7/4/45) when:
(2) she was not selected for a Foreign Service National (FSN)
Administrative Assistant position, located in Israel, in or around
January of 1995;
(3) her request to convert the FSN Administrative Assistant position to
a GS position was denied on or around February 1, 1995; and
(4) she was not selected for a FSN Traffic Management Assistant position
(with the Department of the Air Force in Israel) on or around February 1,
1995, as the agency allegedly failed to forward her application to the
Department of the Air Force.
The record reveals that appellant, a GS-1740-11 Education Specialist with
the Department of the Army (appellant worked in the United States, but
was on a Leave Without Pay in Israel during the relevant time), filed
formal EEO complaints with the agency on March 10, 1995, and April 9,
1995, alleging that the Defense Logistics Agency (DLA or agency) had
discriminated against her as referenced above. At the conclusion of the
investigations, appellant requested hearings before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ). The AJ
consolidated appellant's complaints for a single hearing, and issued a
Recommended Decision from the bench (RD) finding no discrimination.
Concerning issue (1), the AJ concluded that appellant failed to
establish a prima facie case of reprisal because she failed to establish
a causal nexus between her spouse's EEO activity and her non-selection.
The AJ found that appellant established a prima facie case of religion
and sex discrimination, as the selectee was male and not of Orthodox
Jewish decent. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that
the selecting official (SO) narrowed the list of candidates to four,
including appellant, and a selection panel subsequently recommended the
selectee (SE) and one other candidate as best qualified. SO checked
references, and subsequently selected SE based on his supervisory,
overseas and budget management experience. While appellant alleged
that she should have been considered under the Family Member Preference
(FMP) program, the AJ concluded that the FMP program did not apply
because it applied to external recruitment, i.e., selections where the
area of consideration was outside the federal service. The AJ noted
that the position was advertised within the federal service, DOD-wide,
and was therefore an internal, not external recruitment. While the AJ
noted some irregularities in the selection procedures, he concluded that
appellant did not demonstrate that any irregularities were motivated by
discriminatory animus. The AJ noted that in fact, appellant benefitted
because she was one of only four candidates considered by the selection
panel. Finally, the AJ concluded that despite the agency's concern
about nepotism (because appellant would have supervised her husband had
she been selected), the AJ found that the agency would have considered
dealing with the situation had appellant been selected.
Concerning issue (2), the AJ concluded that appellant established a prima
facie case of age discrimination, but failed to establish a prima facie
case of religion or sex discrimination, noting the record is unclear as
to the selectee's (SE2) religion. The AJ then noted that as with issue
(1), appellant failed to establish a prima facie case of retaliation.
The AJ found that although appellant, herself, had engaged in EEO
activity concerning her non-selection for the Administrative Officer
position, she failed to demonstrate that agency officials were aware
of her EEO activity. The AJ concluded that the agency articulated
legitimate, nondiscriminatory reasons for its selection, namely, that
the selecting official (SO2) asked two other employees (M1 and M2),
who the eventual selectee would work with, to review the applications
and recommend the top two candidates. Both M1 and M2 interviewed
the candidates, including appellant, and recommended two females for
the position. The AJ found credible the testimony of both M1 and M2,
that appellant's computer experience was minimal and not current, that
they preferred hiring a FSN because U.S. citizens usually worked only
two years, and that they wanted someone conversant in Hebrew because the
position occasionally required greeting visitors who only spoke Hebrew.
Both M1 and M2 indicated that the selectee (SE2) was familiar with the
agency computer systems, was a FSN employee, and was fluent in Hebrew.
The AJ found that SO2 selected SE2 based on these factors, and SO2
stated that he did not see relevant or up-to-date computer experience
on appellant's application. The AJ also found that appellant failed to
demonstrate that the agency's reasons were a pretext for discrimination.
While noting that the interview notes of M1 and M2 were missing, the AJ
nonetheless concluded, after reviewing the applications of appellant and
SE2, that appellant's application did not indicate that she had current,
relevant computer experience, and thus she did not demonstrate that
she was clearly more suited for the position than SE2. While the AJ
found that appellant's administrative experience was superior to SE2,
the AJ concluded that it was not his role to substitute his judgment for
the agency's where impermissible factors did not motivate the agency's
selection. The AJ finally concluded that although appellant argued
that the FMP program applied to this selection, the agency demonstrated
that the FMP program does not apply to FSN positions unless Schedule A
authority is obtained, which it was not.
Concerning both of the above non-selections, the AJ noted that appellant
never alleged that the Spouse Preference Program was applicable.
The AJ also noted that the Rockefeller Amendment, which permitted
U.S. employees to apply for FSN positions, applied to State Department,
not DLA positions, and that nonetheless, appellant applied and was
considered for the FSN Administrative Assistant position. The AJ
found appellant's allegation of a conspiracy engineered by the agency's
Lieutenant Colonel (COL), in retaliation for her husband's EEO activity,
to be woefully unfounded, without a scintilla of proof, and that COL's
only involvement in her husband's EEO activity was to recommend settlement
and facilitate his arrival at the DLA facility. The COL also indicated
that he offered appellant's husband the FSN Administrative Assistant
position prior to the position being advertised. Finally, the AJ noted
that even if the agency violated its affirmative action plan by hiring a
male (SE1), when the agency was under represented in that job category,
such a showing is alone insufficient to trigger a Title VII violation.
Concerning issue (3), the AJ concluded that appellant failed to establish
a prima facie case of religion, age, or gender discrimination because
she failed to demonstrate that similarly situated employees not in her
protected classes were treated more favorably under similar circumstances.
The AJ also found that appellant failed to establish a prima facie case
of retaliation, noting again the lack of a nexus between any EEO activity
and the decision to not convert the position from a FSN to a GS position.
Notwithstanding these conclusions, the AJ noted that appellant failed
to demonstrate that the COL's decision was motivated by discriminatory
animus, noting that the COL testified that he did not have ultimate
authority to convert the position, and that the agency was reluctant,
given the high turnover of individuals in GS positions, to convert a
FSN position to a GS position. The AJ found that appellant presented
no evidence that the agency's reasons were a pretext for discrimination
or retaliation.
Concerning issue (4), the AJ concluded that appellant presented no proof
that the agency failed to forward her application to the Department of
the Air Force. The AJ thus found the allegation unfounded, and that
appellant failed to demonstrate an injury, or that she was somehow
discriminated against. Finally, the AJ noted that appellant presented
no evidence that age was a determinative factor in any of the adverse
actions alleged by appellant.
The agency's FAD adopted the AJ's RD. On appeal, appellant restates
arguments previously made at the hearing, and in a lengthy brief, alleged
that the AJ was bias, that the AJ improperly permitted the admission of
certain records in lieu of original records, which could not be located,
that the AJ failed to discredit the testimony of certain witnesses based
on inconsistencies, and that the AJ improperly concluded that the FMP
program was inapplicable to appellant's candidacy. The agency response
takes issue with each argument by appellant on appeal, and requests that
we affirm its FAD.<2>
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Concerning issues (1) and (2), we
conclude that appellant did establish a prima facie case of retaliation.
Specific to issue (1), a nexus exists because the SO stated in her
affidavit to the investigator that she was aware of appellant's husband's
EEO activity through office gossip, and that it may have influenced
her decision to give appellant more consideration then if she had not
been aware of such gossip. See Investigative File, Case No. XI-95-004,
Exhibit P, page 2. Concerning issue (2), the nexus is derived from
SO2's statement in his investigative affidavit that he was aware of
appellant's EEO complaint, and that he knew that �everything had to be
done correctly� or that �we would have an EEO complaint on our hands if
she was not selected for this position.� See Investigative File, Case
No. XI-95-006, Exhibit P, page 1. Notwithstanding these conclusions, we
agree with each of the AJ's other findings, and agree with the AJ that
appellant failed to present evidence that any of the agency's actions
were in retaliation for appellant's prior EEO activity or were motivated
by discriminatory animus toward appellant's sex, religion or age. We note
that EEOC Regulations provide AJ's with broad discretion in the conduct
of a hearing, including such matters as discovery orders and the drawing
of adverse inferences and other sanctions. See Malley v. Department of the
Navy, EEOC Appeal No. 01951503 (May 22, 1997). We also find insufficient
evidence of bias on the part of the AJ. See Estes v. Department of the
Army, EEOC Request No. 05960412 (March 20, 1998). Finally, the Commission
notes that it generally will not disturb the credibility determination of
an AJ where, as here, such determinations are based on the credibility
of the witnesses. Esquer v. United States Postal Service, EEOC Request
No 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990). We discern no basis to
disturb the AJ's findings of no discrimination which were based on a
detailed assessment of the record and the credibility of the witnesses.
Therefore, after a careful review of the record, including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
May 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The Commission
exercises its discretion pursuant to 29 C.F.R. �
1614.606 to consolidate the above appeals for a
single decision.
2 The Commission notes that throughout its appeal brief, the agency cited
to relevant portions of 29 C.F.R. � 1613. We remind the agency that
part 1613 of 29 C.F.R. was amended by part 1614 effective April 10, 1992.