01973127
06-21-1999
Ann Rollins, Appellant, v. Earl A. Powell, III, Director, National Gallery of Art, Agency.
Ann Rollins, )
Appellant, )
)
v. ) Appeal No. 01973127
) Agency No. 96-03
Earl A. Powell, III, )
Director, )
National Gallery of Art, )
Agency. )
___________________________________)
DECISION
On March 5, 1997, Ann Rollins (appellant) appealed the final decision of
the National Gallery of Art (agency), dated February 5, 1997, concluding
she had not been discriminated against in violation of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq.; the Age Discrimination
in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. �621 et seq.;
and the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
Appellant had alleged she had been discriminated against by agency
officials on the bases of her physical disability, age (45) and/or
retaliation for engaging in prior EEO activity, when, in 1995, she was
not hired as a cashier. This appeal is accepted in accordance with the
provisions of EEOC Order No. 960.001.
The evidence of record establishes that, in August 1995, appellant,
then 45 years old, responded to a newspaper advertisement placed by the
agency for cashiers in the Gallery's gift shops. Appellant was among
a number of other applicants interviewed by two Assistant Managers
from the Gallery East shop. Following the interview, the Assistant
Managers selected candidates other than appellant for the available
positions. The Assistant Managers stated that the candidates selected
were much better qualified than appellant because they had more retail
experience, were more professional in demeanor and provided complete
employment references. Appellant, in contrast, indicated that she had
no retail experience beyond one month as a cashier at the Smithsonian.
She also told the interviewers that she had been dismissed from that
position as a result of a dispute over the use of stools by cashiers.
Both interviewers also stated that appellant conveyed a negative attitude
and a lack of interest and initiative in her responses to interview
questions, especially one particular hypothetical situation presented.
Finally, the Assistant Managers noted that appellant was late for the
interview and her application form was incomplete. For example, the
portion of her application asking for employment references contained no
names or telephone numbers of former supervisors. She also asked that her
former supervisors at the Smithsonian not be contacted. Appellant was
provided the opportunity to amend her application form, but failed to
do so. By form letter dated August 29, 1995, appellant was informed
of the agency's decision not to hire her. In September 1995, when the
agency ran another advertisement for cashiers in anticipation of two
major exhibits opening in the fall, appellant was again not among the
candidates selected. While appellant did not specifically reply to this
advertisement, she felt she should have been considered because her August
1995 rejection letter indicated that her application would be kept on
file for three months in the event that other positions became available.
On October 11, 1995, appellant filed a formal EEO complaint, alleging
that the agency had discriminated against her as referenced above.
The agency accepted the complaint and conducted an investigation.
At the conclusion of the investigation, appellant waived her right to a
hearing and requested a final agency decision on the evidence of record.
On February 5, 1997, the agency issued its final decision, finding no
discrimination had been established on any of the bases alleged. It is
from this decision that appellant now appeals.
Appellant's complaint constitutes a claim of disparate treatment which is
properly analyzed under the three-tiered analytical framework outlined
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also,
U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716
(1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253-256 (1981).
Applying this analysis, the Commission first finds that appellant has
failed to establish a prima facie case of disability discrimination
because she presented insufficient evidence that she is an individual
with a disability as defined in the Rehabilitation Act. See 29
C.F.R. �1614.203(a). Appellant bases her disability discrimination
claim solely on her discussion during the interview about her desire
to use a stool while working. However, appellant never informed the
interviewers about any medical condition which necessitated her use of
a stool. Even during the processing of her complaint, appellant offered
no evidence that she has a physical impairment which substantially limits
a major life activity or that she has a record of such a disability
or was regarded by the agency as having such a disability. Similarly,
appellant has also failed to establish a prima facie case of unlawful
retaliation. Appellant bases this claim on her assertion that she told
the interviewers that she had filed a discrimination complaint against her
former employer, the Smithsonian, over her dismissal from her position
with that agency. However, both interviewers denied appellant told
them about filing this complaint. In addition, the record contains
two affidavits from appellant's former employers at the Smithsonian
attesting to the fact that they did not provide any information to the
agency regarding appellant. Therefore, the Commission finds that the
evidence of record does not establish that the interviewers were aware
of appellant's prior EEO activity, and, therefore, could not have been
motivated by retaliatory animus.
Finally, the agency has conceded that appellant raised an initial
inference of age discrimination because she was rejected for the
available cashier positions and individuals under the age of 40
were hired. However, as outlined above, management officials have
successfully rebutted this initial inference of discrimination with
an articulation of legitimate, nondiscriminatory reasons for the
actions taken. Specifically, management proffered that the selectees
were chosen over appellant because, based on the information contained
in their applications and gathered during the interviews, they were
judged to be better qualified because they had more relevant retail
experience, had more complete employment references and displayed a
more professional demeanor. After a careful review of the record,
the Commission discerns no basis upon which to conclude that appellant
established, by a preponderance of the evidence, that the agency's
articulated reasons for its actions in this matter were unbelievable or
that its actions were more likely motivated by discrimination.
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision of no age, disability and/or reprisal
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 21, 1999
__________________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations