Rebecca L. Krautlarger, Complainant,v.Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 18, 2005
01a44925 (E.E.O.C. Mar. 18, 2005)

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.