Valencia D. Wright, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionJan 11, 2002
01A14136 (E.E.O.C. Jan. 11, 2002)

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.