01980996
10-23-1998
Norma Wood, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Norma Wood v. Department of Veterans Affairs
01980996
October 23, 1998
Norma Wood, )
Appellant, )
)
v. ) Appeal No. 01980996
) Agency No. 96-0557
Togo D. West, Jr., ) Hearing No. 350-96-8190X
Secretary, )
Department of Veterans Affairs, )
Agency. )
___________________________________)
DECISION
On November 10, 1997, Norma Wood (appellant) timely appealed the final
decision of the Department of Veterans Affairs (agency), dated October 30,
1997, concluding she had not been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq., the Age Discrimination in Employment Act (ADEA) of 1967, as amended,
29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. In her complaint, appellant alleged that agency
officials had discriminated against her on the bases of her race (Asian),
national origin (Filipino), age (DOB: 05-10-40) and/or physical disability
(broken tailbone) when she was not selected for the position of Food
Service Worker Supervisor, WS-7508-02, in October 1995. This appeal is
accepted in accordance with the provisions of EEOC Order No. 960.001.
At the time this matter arose, appellant was employed by the agency at
its Medical Center in Albuquerque, New Mexico, as a Food Service Worker.
Appellant submitted a timely application in response to an agency
vacancy announcement for the position of Food Service Worker Supervisor.
She was rated as qualified for the position and referred to the selecting
official on a certificate of eligibles. The record establishes that
appellant was among the five candidates who was interviewed by the
selecting official. After the interviews, a candidate (black female;
DOB: 02-02-61) from outside the agency was selected for the position
in question. The selecting official testified that the selectee was
chosen for her twelve years of supervisory food service experience.
In contrast, the selecting official explained that appellant, although
she was a current agency employee, had only two month of experience as
an acting supervisor.
On December 10, 1995, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against her
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On August 20, 1997, following a hearing at which six witnesses testified,
the AJ issued a decision concluding no discrimination had occurred on any
of the bases alleged. In that decision, the AJ first found appellant
failed to establish a prima facie case of disability discrimination
because there was insufficient evidence that appellant was an individual
with a disability within the meaning of the Rehabilitation Act.
In reaching this conclusion, the AJ noted that appellant's testimony
did not support a finding that her physical condition (broken tailbone)
substantially limited any major life activity or was more than transitory
in nature. With regard to the other bases of discrimination alleged
by appellant, the AJ concluded that the agency successfully rebutted
any initial inference of discrimination raised by appellant with its
articulation of legitimate, nondiscriminatory reasons for the selection
made. The AJ went on to hold that appellant failed to meet her burden of
proving, by a preponderance of the evidence, that the agency's articulated
reasons for its actions in this matter were unbelievable or that its
actions were more likely motivated by discriminatory factors.
On October 30, 1997, the agency adopted the findings and conclusions
of the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns
no basis to disturb the AJ's finding of no discrimination. Nothing
proffered by appellant on appeal differs significantly from the arguments
raised before, and given full consideration by, the AJ. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which adopted the AJ's finding of no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. � l6l4.604(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 this 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 this 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 this 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. 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:
Oct 23, 1998
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations