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