0120103004
09-28-2010
Janet M. Stock, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Rural Development), Agency.
Janet M. Stock,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Rural Development),
Agency.
Appeal No. 0120103004
Hearing No. 560-2009-00036X
Agency No. RD-2008-00079
DECISION
On July 28, 2010, Complainant filed an appeal from the Agency's June 28, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accountant Technician at the Agency's Rural Development facility in St. Louis, Missouri. On August 29, 2007, Complainant applied for the position of Accountant (GS-0510-07/09/11/12), under Vacancy Announcement Number SL-07-41. On October 15, 2007, Complainant was informed that she was not selected for the position. Believing that she had been subjected to discrimination, Complainant contacted an EEO Counselor on October 23, 2007. When the matter was not resolved informally, on December 28, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (diabetes) and age (54) when, on October 17, 2007, she was informed that she was not selected for the Accountant position under Vacancy Announcement Number SL-07-41.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency determined that the Agency articulated legitimate, nondiscriminatory reasons for its decision regarding the position at issue. Complainant argued that she had received comments regarding her condition and her age from management officials and co-workers. The Agency indicated that Complainant failed to provide more specific information regarding the comments. Further, the Agency found that Complainant provided no proof that the Selecting Official's decision was based on her age and/or disability. Accordingly, the Agency concluded that Complainant failed to show that she had been subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant appealed. On appeal, Complainant indicated that she provided the EEOC AJ with a list of the comments made to her regarding her age and/or disability and the individuals who made the comments to her. She argued that her evidence supports her claim of discrimination based on her age and her disability. The Agency requested that we affirm its final decision finding no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. The Selecting Official, the Chief of the Fiscal Reconciliation Branch (FRB), indicated that she reviewed the applications of those who were listed as "best qualified" by a review panel. Complainant and Selectee were both listed on the "best qualified" list. The Selecting Official averred that she was looking for someone with knowledge and/or experience relevant or equivalent to the duties that this position required. She noted that the individual selected for the position would be responsible for overseeing all balancing issues/projects for the Program Loan Accounting System (PLAS) as they relate to FRB's function. The Selecting Official stated that the Selectee was chosen based on her documented experience and knowledge in the duties to be performed for the position in question. Finding that the Agency has met its burden, the Commission turns to Complainant to establish that the Agency's reasons were pretext for discrimination.
Complainant argued that she received a perfect score by the reviewing panel. Further, she argued that comments made in the workplace regarding her medical condition and age showed the Agency's bias against her protected bases. Upon review, we note that Complainant and the selectee were given the rating of 20 out of 20 by the review panel. Further, we note that Complainant provided no proof of the alleged comments made by co-workers and management. We find that Complainant has provided no evidence to establish that the Agency's reasons were pretext for discrimination. Therefore, we conclude that Complainant has not shown that she was subjected to age or disability-based discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 28, 2010
__________________
Date
2
0120103004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120103004