01972634
03-03-1999
Priscilla Stevens, Appellant, v. Togo D. West, Jr. Secretary, Department of Veterans Affairs, Agency.
Priscilla Stevens, )
Appellant, )
) Appeal No. 01972634
v. ) Agency No. 95-2026
) Hearing No. 100-96-7132X
Togo D. West, Jr. )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (African-American)
and age (D.O.B. 12/31/41), in violation of Title VII of the Civil
Rights Act of 1964, 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. Appellant alleges she was discriminated against
when she was neither interviewed nor selected for the position of Program
Assistant, GS-303-7/8/9. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that on April 11, 1995, appellant, a GS-7 Program
Assistant in the Office of the Associate Director of the agency's
Medical Center, applied for the position of Program Assistant (PA) to
the Associate Director. Although the agency determined that appellant
was qualified for the PA position and her application was forwarded to
the Selecting Official (SO) and hiring committee, she was not one of
the candidates interviewed, and she was informed that a younger White
woman had been selected.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on July 14, 1995.
At the conclusion of the investigation, appellant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Pursuant to 29 C.F.R. �1614.109(e), the AJ issued a
Recommended Decision (RD) without a hearing finding no discrimination.
Employing the principles set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981), the AJ found that the agency, through the testimony
of the SO, articulated legitimate, non-discriminatory reasons for its
nonselection of appellant, namely, that the selectee was chosen for the
PA position by a hiring panel consisting of the SO (White woman), two
African-Americans and a White employee due to her strong qualifications,
computer experience, personality and education. The AJ further found
that although appellant was not recommended for an interview based on
the panel's evaluation of her qualifications, the SO and hiring panel did
recommend candidates for interviews who were of varying races and ages.
As such, the AJ found that the inquiry shifted from establishment of
appellant's prima facie case to whether she demonstrated that the agency's
reasons for its actions were a pretext for discrimination. See United
States Postal Services Board of Governors v. Aikens, 460 U.S. 711 (1983).
The AJ found that appellant failed to establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination, as the appellant failed to demonstrate that
her qualifications were clearly superior to those of the selectee.
The AJ also found that the appellant failed to establish that despite
certifying African-Americans and older candidates for an interview,
the SO was motivated by discriminatory animus in failing to interview
the appellant or in choosing the selectee. The AJ concluded that the
appellant did not demonstrate that a comment made by the SO about an
African-American candidate's use of English was more than a stray remark.
The agency's FAD adopted the AJ's RD. Appellant makes no new contentions
on appeal, and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ's finding that the
SO articulated legitimate, non-discriminatory reasons for not interviewing
appellant and choosing the selectee. We further agree with the AJ
that the appellant failed to demonstrate that it was more likely than
not that the SO's decision was motivated by concerns about race or age.
Aikens, supra; Gatlin v. Espy, EEOC Appeal No. 01942199 (Jan. 23, 1995).
We thus discern no basis to disturb the AJ's findings of no discrimination
which were based on a detailed assessment of the record. Therefore,
after a careful review of the record, including appellant's contentions
on appeal, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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 (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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations