01a50139
02-15-2005
Linda L. Hillman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Linda L. Hillman v. Department of Veterans Affairs
01A50139
02-15-05
.
Linda L. Hillman,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A50139
Agency No. 200k-0676-2003104539
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. 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 Nurse at the agency's Tomah, Wisconsin facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on November 4,
2003, alleging that she was discriminated against on the bases of sex
(female), age (DOB 7/1/1948), and reprisal for prior EEO activity when:
(1) On or about August 22, 2003, she learned that she was not selected
for the position of Support Service Line Manager;
(2) On or about September 8, 2003, she received an e-mail from her
supervisor which cautioned her about being tardy;
(3) On or about September 25, 2003, she was subjected to
harassment/hostile work environment when a facility safety officer stated
in front of her supervisors that she had �better watch it.�
The agency accepted claim (1) for investigation but dismissed claims (2) -
(3) for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
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, the agency dismissed claims (2) and (3) for failure to state
a claim, With regard to claim (1), the agency found that complainant
established a prima facie case of sex and age discrimination but failed
to establish a prima facie case of reprisal discrimination. Even assuming
arguendo, that complainant established a prima face case of reprisal
discrimination, the agency concluded that it articulated legitimate
nondiscriminatory reasons for its actions, which were not shown to
be pretextual.
Complainant filed the instant appeal. Complainant's contentions on appeal
are unknown as complainant did not file an appeal brief. The agency
requests that we affirm its FAD.
Procedural Dismissal of Claims (2) & (3)
EEOC regulations 29 C.F.R. � 1614.107(a) provides that an agency
shall dismiss a complaint, or a portion of 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
or � 1614.106(a). Inherent in the regulations' characterization of
�aggrieved� is that some direct harm must have affected a term, condition,
or privilege of complainant's employment for which there is a remedy. See
Fitzgerald v. Department of the Navy, EEOC Request No. 05910466 (June
21, 1991); Diaz v. Department of Air Force, EEOC Request No. 05931049
(April 21, 1994).
Upon review, the Commission agrees with the FAD's dismissal of claims
(2) and (3) as complainant has failed to allege a personal loss or harm
with respect to a term, condition or privilege of employment for which
there is a remedy. Furthermore, with respect to claim (3), this single
alleged incident does not state a claim of hostile work environment.
Merits of Claim (1)
Although the initial inquiry 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. 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 the complainant has demonstrated
by a preponderance of the evidence that the agency's reasons for its
actions merely were a pretext for discrimination. Id.; See also United
States Postal Service Board of Governors v. Aikens. 450 U.S. 711(1983).
The Commission finds that the agency articulated legitimate
nondiscriminatory reasons for its employment decision, which we determine
were not persuasively rebutted by complainant. The agency articulated that
the selectee was chosen because he had successfully occupied the position
at issue in an acting capacity and scored high in the performance based
interview in the area of leadership, performance improvement, customer
service and change management. In contrast, the agency articulated
that complainant was qualified but lacked similar specific experience
as the selectee and appeared tentative and offered vague responses to
the interview questions. The selectee attained an average score of 4.2
by the interview panel compared to complainant's 3.6 average score.
We find that complainant failed to prove that more likely than not,
the agency's articulated reasons for its actions were a pretext for
unlawful discrimination and/or retaliation.
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 FAD.
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
____02-15-05______________
Date