Agency.

Equal Employment Opportunity CommissionMar 16, 2005
02a40007 (E.E.O.C. Mar. 16, 2005)

02a40007

03-16-2005

Agency.


Eunice M. Brandon v. Department of Labor

02A40007

March 16, 2005

.

Eunice M. Brandon,

Grievant,

v.

Elaine Chao,

Secretary,

Department of Labor,

Agency.

Appeal No. 02A40007

Agency No. ARB-ETA-00-00-041

DECISION

Pursuant to 29 C.F.R. � 1614.401(d) and � 1614.405, the Commission

accepts the grievant's appeal from the Arbitration decision in the

above-entitled matter. The grievant initiated a proceeding in accordance

with the agency's negotiated grievance procedure. The issue on appeal

is whether the grievant has established that the agency discriminated

against her in violation of the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. when she was not

selected for the GS-14 Contract Compliance Officer position.

The record reveals that during the relevant time, the grievant was

employed as an Audit Resolution Specialist, GS-13, with the agency's

Employment Training Administration. Following her non-selection for

the position at issue, the grievant filed a grievance pursuant to the

Collective Bargaining Agreement, and also claimed a violation of statutory

discrimination laws. A Step 2 decision was issued on December 13, 1999,

denying the grievance, and arbitration was invoked on September 29, 2000.

Following Arbitration hearing, the Arbitrator issued a decision dismissing

the grievance on April 22, 2004. In this decision, the Arbitrator found

that the Union failed to carry its burden to establish that the agency

violated the Collective Bargaining Agreement or discrimination laws.

The record shows that the vacancy announcement for the position at issue

was posted on July 23, 1999, and six employees, including the grievant,

were certified as being eligible. On November 3, 1999, the selectee was

chosen for the position by the selecting official, who testified before

the Arbitrator that he based his decision on the selectee's experience

in audit resolutions, her past performance appraisals, and the quality

of her interview. (Hearing Transcript Volume II, 66; 73; 76). Further,

the record establishes that the selectee had been placed in the temporary

position of Acting Contract Compliance Officer position prior to her

selection. (HT Volume I, 41). In her decision, the Arbitrator found

that the grievant failed to show that the non-selection was motivated

by unlawful age discrimination. Specifically, the Arbitrator found

that the only evidence presented by the grievant to support the claim

of age discrimination was that the selectee was five years younger

than the grievant at the time of the selection, and that a management

official, who was not the selecting official for the position at issue,

had asked the grievant how long she planned to work. (HT Volume I, 98).

The Arbitrator also noted that this question was posed to the grievant

by the management official two years prior to the selection at issue.

(Arbitration Decision, 4-5).

When a grievant relies on circumstantial evidence to prove an agency's

discriminatory intent or motive, there is a three step, burden-shifting

process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The

initial burden is on the grievant to establish a prima facie case of

discrimination. McDonnell Douglas, 411 U.S. at 802. The burden then

shifts to the agency to articulate some legitimate, nondiscriminatory

reason for its challenged action. Id. If the agency is successful, the

grievant must then prove, by a preponderance of the evidence, that the

legitimate, nondiscriminatory reason articulated by the agency is merely

pretext for its discrimination. McDonnell Douglas, 411 U.S. at 804.

The burden of persuasion always remains with the grievant.

Here, we find that the agency articulated a legitimate, nondiscriminatory

reason for its action; namely, that the selectee was the most qualified

candidate for the position given her work record and her experience as

Acting Contract Compliance Advisor. We now proceed to determine whether

grievant satisfied her burden of showing pretext. Grievant may do this

in one of two ways, either directly, by showing that a discriminatory

reason more likely, motivated the agency, or indirectly, by showing

that the agency's proffered explanation is unworthy of credence. Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

We also note that one way to establish pretext in a nonselection case

is for grievant to show 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). Here, grievant failed to present sufficient evidence

establishing that her qualifications were plainly superior to those of the

selectee, or any other persuasive evidence that the agency's legitimate,

non-discriminatory reason was pretext for age 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 arbitration decision

because the preponderance of the evidence of record 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 grievant 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).

GRIEVANT'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

March 16, 2005

__________________

Date