01a44925
03-18-2005
Rebecca L. Krautlarger, Complainant, v. Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.
Rebecca L. Krautlarger v. Department of the Air Force
01A44925
March 18, 2005
.
Rebecca L. Krautlarger,
Complainant,
v.
Peter B. Teets,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A44925
Agency No. 9V1M02560F04
Hearing No. 310-2003-05429X
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. 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 at all relevant times, complainant was employed
as an Aircraft Engine Repairer, WG-8602-09, in the TF30 Engine Section
(LPPPG), TF30/33 Engine Section (LPPP), Engine Division (LPP), Production
Directorate, located at Tinker Air Force Base, Oklahoma. In May 2002,
a position in the LPPPA for an Aircraft Engine Repair Supervisor,
not to exceed one year, became available. Complainant applied for
the position, however, on August 23, 2002, complainant learned she was
not selected. Believing she was a victim of discrimination, complainant
sought EEO counseling and filed a formal complaint alleging that she was
discriminated against on the basis of sex (female) and in reprisal for
prior EEO activity [arising under Title VII] when, on or about August
23, 2002, she became aware that she was not selected for the position
of Aircraft Engine Repair Supervisor, WS-8602-09. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ subsequently issued a decision without a hearing, finding no
discrimination.
In her decision, the AJ initially found that complainant failed to
establish a prima facie case of discrimination because complainant
was not among the individuals referred to the selecting official (S1)
for consideration. The AJ then found that the agency articulated a
legitimate, nondiscriminatory reason for its action; namely, complainant's
name was not referred to S1 for consideration because, unlike complainant,
the only candidates whose names were referred, were already working in
the section of the position to be filled (LPPPA). The AJ further found
that the record evidence fails to support complainant's claim that the
agency's reason is a pretext for discrimination. The agency implemented
the AJ's decision.
On appeal, complainant contends that the area of consideration
was intentionally limited in order to discriminate against her.
She further points out that S1 stated in his investigative testimony
that in hindsight he should not have eliminated the �G� section from
competing for the position at issue. Complainant additionally contends
that the AJ improperly excluded one of her witnesses who would have
testified about an appraisal which she received. She further contends
that she requested an amendment which the AJ improperly denied on the
basis that it was not timely submitted. Complainant asserts that her
representative failed to respond to the AJ's denial of the amendment.
Finally, complainant contends that her request for production of
documents was never acknowledged by the agency, and she notes that
her representative failed to ask the AJ to require submission of the
documents. Complainant contends that these documents would have helped
her to prove her claim.<1> In its opposition to the appeal, the agency
asserts that the record contains no genuine issues of material fact in
dispute, and contends that the AJ's decision without a hearing was proper.
The agency requests that we affirm its final order (FAO).
As an initial matter we note that, as this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). The allocation of burdens and order of presentation of
proof in a Title VII case alleging disparate treatment discrimination is
a three step procedure: complainant has the initial burden of proving,
by a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
We will assume arguendo that complainant has established a prima facie
case of sex discrimination and retaliation. The agency has articulated a
legitimate, nondiscriminatory reason for its action; namely, complainant's
name was not referred to the selecting official for consideration because,
unlike complainant, the only candidates whose names were referred,
were already working in the section of the position to be filled
(LPPPA). In an attempt to establish pretext, complainant contends that
the selectee was pre-selected. Complainant also alleges that S1 made
the statement that �this is a man shop and not a woman's place to work�
to one of her co-workers. S1 denies making such a statement, however,
even assuming he did make the statement, this is still insufficient to
establish by a preponderance of the evidence, that the agency's reason
for not limiting the area of consideration and not selecting complainant,
was discriminatory or retaliatory animus. Additionally, even if the
selectee was pre-selected, this is simply not probative evidence of
discrimination. Finally, complainant's contention that the area of
consideration was limited specifically in order to discriminate against
her, is not persuasive given that everyone in her area was excluded,
not solely complainant, or females as a group.
The agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may
be able to establish pretext with a showing that her qualifications were
plainly superior to those of the selectee. Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). Complainant has not set forth
sufficient evidence from which a trier of fact could conclude that she
has made such a showing. We therefore concur with the AJ's findings of
no discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, see Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003), and a preponderance of the record evidence
does not establish that discrimination occurred.
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:
March 18, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 We note that neither the agency, nor the AJ, can be held responsible for
the failure of complainant and/or her representative to submit motions,
or make arguments before the AJ. Here, we discern no abuse of discretion
by the AJ.