01a45590
12-08-2004
Liman Tsai, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.
Liman Tsai v. Federal Deposit Insurance Corporation
01A45590
December 8, 2004
.
Liman Tsai,
Complainant,
v.
Donald E. Powell,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01A45590
Agency No. FDICEO-030033
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., 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 decision.
The record reveals that during the relevant time, complainant was
employed as a CG-530-07, Financial Technician in the agency's Division
of Resolutions and Receiverships in Dallas, Texas. Complainant sought
EEO counseling and subsequently filed a formal complaint on September
26, 2003, alleging that she was discriminated against on the bases of
race (Asian), national origin (Taiwanese), disability (heart disease,
depression), age (DOB: 7/30/43), and in reprisal for prior EEO activity
when:
(1) on July 29, 2003, she was informed by electronic mail that she
was not among the best qualified candidates and was not referred to
the selecting official for consideration for the CG-1101-05/07/09,
Resolutions and Receiverships Specialist positions, with promotion
potential to CG-12, advertised as multiple vacancies under Vacancy
Announcement Number 2003-DAL-B2101 and
she became aware that on May 27, 2003, the agency posted the
CG-1101-05/07, Resolutions and Receiverships Specialist positions, with
promotion to the CG-12 level, advertised as multiple vacancies under
Vacancy Announcement Number DS173421, as two year internship positions.
On September 8, 2003, she became aware that the matter was discriminatory
when two of the new hires were assigned to the Operational Accounting
Section to perform the same duties as she performed. She further alleges
that management should have promoted her instead of hiring and training
applicants from outside the agency.
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 dated July 22, 2004, the agency found no discrimination.
In regard to claim one, the agency concluded that there were legitimate,
nondiscriminatory reasons for its actions. The agency noted that
the ratings panel based their ratings on the information contained in
the candidates' applications which did not include information on the
applicants' protected groups. The agency also noted that complainant
failed to give sufficient examples of her experience to warrant higher
ratings, and that in contrast, the candidates on the roster of eligibles
gave more detailed examples of experience in response to the quality
ranking factors.
The agency dismissed claim two for failure to state a claim.
In particular, the agency noted that complainant did not apply for any
of the subject positions. The FAD also found that the subject positions
had greater promotion potential than the position complainant occupied,
and to non-competitively place her in one of the positions would have
violated the Merit Promotion Plan.
On appeal, complainant makes no new contentions. The agency requests
that we affirm its FAD.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated legitimate, nondiscriminatory reasons for its actions.<1>
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination or retaliation. Id.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
The Commission agrees with the FAD's conclusion that complainant did not
establish that more likely than not, the agency's articulated reasons were
a pretext to mask unlawful discriminatory animus or retaliatory motive.
In reaching this conclusion, we note that the record evidence indicates
that other than complainant's own assertions, there is no evidence that
any of the agency's actions were based on any of her protected classes.
The Commission also agrees with the FAD's dismissal of claim two.
It is well-settled that claims of non-selection fail to state a claim
where complainant fails to establish that she applied for the position.
See Ozinga v. Department of Veterans Affairs, EEOC Request No. 05910416
(May 31, 1991). Here, the record shows that complainant did not apply
for any of the internship positions. On appeal, complainant neither
claimed that she did in fact apply for one of the internship positions,
nor has she shown that she attempted to apply for one of the internship
positions, but was dissuaded, Therefore, after a careful review of the
record, including 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
December 8, 2004
__________________
Date
1 Because we find that the agency has
articulated legitimate, nondiscriminatory reasons for its actions, we
do not reach the issue of whether complainant is a qualified individual
with a disability.