01A15004
09-23-2002
Kay L. Rogerson, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Kay L. Rogerson v. Department of Energy
01A15004
September 23, 2002
.
Kay L. Rogerson,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A15004
Agency No. N99(091)WAPA
Hearing No. 320-A0-8212X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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., 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 appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant applied for the position of Civil
Engineer, GS 11/12, at the agency's Western Area Power Administration,
which was advertised under vacancy announcement number UGP 99-004.
After initially being found unqualified for the position, complainant
contacted the agency by letter, dated February 9, 1999, challenging the
finding. In response, the personnel specialist forwarded complainant's
application to a subject-matter expert who deemed complainant qualified
for the GS-12 level. Complainant's application was then passed on to
the selecting official on a revised certificate of eligible applicants.
Upon review of the certificate, the selecting official screened out
all applicants but one, whom SO interviewed and subsequently selected
for the position. Complainant was then notified that she had not been
selected for the position at issue.
Believing she was a victim of discrimination, complainant filed a formal
EEO complaint on May 23, 1999, alleging that the agency had discriminated
against her on the bases of sex (female), disability (perceived mental
disability), and age (D.O.B. October 20, 1944) when she was not selected
for the position of Civil Engineer on April 5, 1999.
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. In her decision, the AJ found that complainant
established a prima facie case of discrimination on the bases of sex and
age, but not of disability in that complainant failed to show that the
agency perceived or regarded her as disabled within the meaning of the
Rehabilitation Act. The AJ further concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions, which complainant
failed to show were pretextual. Specifically, the agency stated that
the selectee's experience and background were more closely related to
the duties of the position at issue, and the AJ found that complainant
failed to show that her qualifications were observably superior to those
of the selectee. As to complainant's contention that she was entitled
to priority placement consideration that she did not receive, the AJ
concluded that complainant failed to establish that she was in fact
entitled to priority placement consideration, nor did she submit any
evidence or documentation to the agency as clearly directed to in the
vacancy announcement. Finally, with respect to complainant's contention
that her application was treated differently than the selectee's, the
AJ found that complainant failed to establish that any such differing
treatment was based upon a prohibited basis. The AJ concluded that
complainant failed to show that she was not selected for the position
at issue as a result of discriminatory animus.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred in finding no discrimination,
and also contends that the AJ erred in her interpretation of the laws
and regulations as applied during the hearing and in the decision.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Complainant may establish a prima facie case of sex, age, or disability
discrimination in the non-selection context by showing that: (1) she is
a member of a protected class; (2) she was qualified for the position;
(3) she was not selected for the position; and (4) she was accorded
treatment different from that given to persons otherwise similarly
situated who are not members of her protected group or, in the case
of age, who are considerably younger than she. Williams v. Department
of Education, EEOC Request No. 05970561 (August 6, 1998); Enforcement
Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice
No. 915.002 (September 18, 1996). The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993).
Here, assuming, arguendo, complainant established a prima facie case
of sex, age, and disability discrimination, she has not shown that
her qualifications are plainly superior to the selectee's, nor has she
proffered any persuasive evidence to show that the agency's legitimate,
non-discriminatory reason for her non-selection is mere pretext for
discriminatory animus. Further, Commission precedent holds that selecting
officials have the discretion to choose from among equally qualified
candidates and that their decision should not be second guessed by the
reviewing authority without evidence of unlawful motivation. See Fodale
v. Department of Health and Human Services, EEOC Request No. 05960344
(October 16, 1998).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and 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 motivated by discriminatory animus toward complainant's
sex, age, or perceived disability. We discern no basis to disturb
the AJ's decision. 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 order.
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
September 23, 2002
__________________
Date