01A14136
01-11-2002
Valencia D. Wright, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Valencia D. Wright v. Department of Defense (Defense Commissary Agency)
01A14136
01-11-02
.
Valencia D. Wright,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A14136
Agency No. ALT-99-0032-E
Hearing No. 150-99-8529X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 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 issue presented herein is whether complainant was harassed and
discriminated against on the bases of race (Black) and disability (anxiety
and nervousness) when she was not selected for the full-time Commissary
Clerk position, GS-0303-4, advertised under Vacancy Announcement No.
98-062 on May 5, 1998.
During the relevant time, complainant was detailed to the position of
Commissary Support Clerk, GS-303-4, at the Mayport Commissary, Defense
Commissary Agency in Mayport, Florida. The record reflects that the
agency posted a vacancy announcement for the position of full-time
Commissary Clerk (the position) in May 1998. Complainant applied for
the position and was the only person to make the best qualified list.
The responsible management official (RMO), however, selected another
individual (the selectee) (white, gynecological, back and kidney problems)
noncompetitively for the position. Complainant testified that she
was better qualified for the position than the selectee because she
had been working temporarily in the position at the time she applied.
Complainant further testified that she received an outstanding performance
appraisal for the period from July 1, 1997 through June 30, 1998.
Complainant further alleged that RMO harassed her. As evidence,
complainant described how RMO gave complainant dirty looks when
complainant received telephone calls. Complainant testified that
on one occasion RMO accused complainant of giving RMO dirty looks.
Complainant further testified that RMO told another employee that she had
no control over who answered the telephone, and complainant interpreted
RMO's statement to mean that complainant was not answering the telephone
properly.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on August 8, 1998.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish that she was
subjected to a hostile work environment. The AJ found that the conduct
complainant described as evidence of a hostile work environment was
neither sufficiently severe nor pervasive to create an objectively
hostile or abusive work environment.
With respect to complainant's claim of disparate treatment, the AJ
concluded that complainant established a prima facie case of race
discrimination because: she was a member of a protected class; she
applied for the position and was qualified; she was not selected for the
position; and the selectee was outside of complainant's protected class.
The AJ also determined that complainant failed to establish a prima facie
case of disability discrimination because the responsible management
officials were unaware of complainant's impairment at the time of the
nonselection<1> and complainant failed to show that she was substantially
limited in a major life activity due to her impairment.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its action. Specifically, the selectee
was placed in the position noncompetitively because she was willing
to give up her save grade/save pay status, which had been caused by a
Reduction in Force (RIF),<2> for the position. The RMO testified that
reassigning the selectee allowed the agency to save money because the
selectee would be removed from pay retention and the agency would not
be required to pay her at the higher level. The AJ noted that RMO
testified that complainant was a good worker, however, the selectee
was better qualified for the position because she had worked in the
position for several years as an Accounting Technician, GS-5.<3> The
AJ further noted the Personnel Management Specialist's (PMS) testimony
that she advised RMO that the selectee did not have to apply for the
position since she had previously performed the job. The AJ concluded
that complainant failed to show that the agency's explanation for its
action was pretextual. The AJ found that complainant did not establish
by a preponderance of the evidence that she was discriminated against
on the bases of race or disability. The agency's final decision, dated
May 16, 2001, implemented the AJ's decision.
On appeal, complainant contends, among other things, that: (1) the agency
failed to articulate a legitimate nondiscriminatory reason for its action
because it failed to prove that the selectee had more experience than
complainant; (2) the agency's contention that the selectee was placed in
the position because of priority placement is untrue because the agency
had already offered selectee the position of Store Worker; and (3) almost
all the selections and promotions made by RMO have been White employees.
The agency makes no statement on appeal.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
For purposes of analysis, we assume that complainant is an individual
with a disability. After a careful review of the record, the Commission
finds that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's race
or disability. On appeal, complainant contends that the agency failed to
articulate a legitimate nondiscriminatory reason for its action because it
failed to prove that the selectee had more experience than complainant.
We find, however, that complainant had ample opportunity to further
develop the record as to the selectee's experience during the hearing,
and failed to do so to her own satisfaction. Moreover, we note that the
RMO testified that the selectee had worked in the position for several
years as an Accounting Technician, GS-5. Complainant further argues that
the agency's contention that the selectee was placed in the position
because of priority placement is untrue because the agency had already
offered selectee the position of Store Worker. The record reflects,
however, that the agency placed the selectee in the position because she
was willing to give up her save grade/save pay status for the position,
allowing the agency to save money. Finally, complainant asserts that
almost all of the selections and promotions made by RMO have been White
employees. We, however, find that complainant's assertion alone that the
RMO acted out of discriminatory animus toward complainant's race is not
enough for her to prevail absent evidence that an illegal motive existed.
Therefore, we discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
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
_____01-11-02_____________
Date
1 The record reflects that the medical evidence submitted by complainant
to support her claim that the agency was aware of her condition consisted
of documents submitted to the agency after the selection was made.
2 The record reflects that, when RMO began working at Mayport in 1997,
a RIF was taking place that was going to reduce the staff from five and
a half positions to two and a half positions.
3 The Accounting Technician position became the Commissary Clerk position
after the RIF.