01973314
04-29-1999
Audri L. Clay, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Audri L. Clay, )
Appellant, )
) Appeal No. 01973314
v. ) Agency No. 96-1406
) Hearing No. 210-96-6140X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (Black), color
(black), and age (DOB: 4/20/45), in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Appellant alleges she was discriminated against when on
January 17, 1996, she was not selected for a WG-7408-04 full-time Food
Service Worker position under vacancy announcement number 95-120-87.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that appellant, a WG-03 full-time Food Service
Worker at the agency's Danville, Illinois facility, filed a formal EEO
complaint with the agency on April 5, 1996, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, appellant requested a hearing before an Equal
Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Following a hearing, the AJ issued a Recommended Decision (RD) finding
no discrimination.
The AJ concluded that appellant established a prima facie case of race
and color discrimination, but failed to establish a prima facie case
of age discrimination because she failed to demonstrate that age was a
�determinative factor� in the agency's selection, notwithstanding the
fact that the selectee was younger, and that the Counselor's Report
indicated that the Selecting Official (SO) thought appellant sought the
job in order to increase her retirement pay.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that in applying
routine selection procedures, SO obtained a list of three preferred
candidates from eight different supervisors, reviewed personnel records,
performance appraisals and disciplinary records, and decided that
the selectee was the best qualified candidate for the Food Service
Worker position. SO testified her selection was based on the selectee's
successful performance and demonstrated leadership abilities while working
part-time at the WG-04 level. SO also noted that, having received
two written reprimands within four months, appellant was not the best
candidate for the position.
The AJ then found that appellant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
race or color discrimination. In reaching this conclusion, the AJ found
that although appellant had more years of experience than the selectee,
appellant's experience was at the WG-03 level, whereas the selectee had
been working part-time at the WG-04 level for over six years. The AJ
also noted that while appellant and two supervisors credibly testified
that appellant was periodically assigned WG-04 duties, the SO credibly
testified that she was not aware that appellant performed such duties.
Although appellant alleged she trained many of her co-workers, the AJ
found that new employees were not formally trained, but were encouraged
to ask questions of senior co-workers, and were often assigned to work
alongside senior employees to facilitate the learning process. Finally,
the AJ noted that the selectee was recommended by seven of the eight
supervisors, whereas appellant was only recommended by four supervisors.
The agency's FAD adopted the AJ's RD. Appellant makes no new contentions
on appeal, and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission agrees with the
AJ's conclusion that appellant was not a victim of discrimination.
However, the Commission wishes to clarify that in a case alleging
discrimination under the ADEA, appellant need not demonstrate that age
was a determinative factor as part of the prima facie case. Instead,
that question is addressed when the trier of fact makes a decision on
the ultimate issue of discrimination. See O'Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 308 (1996); Terrell v. Department of
Housing and Urban Development, EEOC Appeal No. 01961030 (October 25,
1996). The ultimate burden remains on appellant to demonstrate, by a
preponderance of the evidence, that age was a determinative factor in the
sense that, "but for" her age, she would not have been subjected to the
action at issue. Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Fodale
v. Department of Health and Human Services, EEOC Request No. 05960344
(October 16, 1998).
Based on these principles of law, we conclude that appellant established
a prima facie case of age discrimination because she was over forty
years of age, was qualified for the position, and was not selected for
the position in favor of a younger employee. However, we note that
appellant fails to prove that the agency's legitimate, nondiscriminatory
reasons for its selection were a pretext for discrimination. The AJ
found that appellant presented no credible evidence that age was a
determinative factor in SO's selection of the selectee. Furthermore,
the Investigative Report demonstrates that over the last two years,
five individuals between the ages of 36 and 59 have been promoted or
had their pay adjusted. See Investigative Report, page 3. Such evidence
further belies appellant's argument that SO was motivated by age animus.
Having presented insufficient evidence that the selection was motivated by
discriminatory animus toward appellant's race, color or age, we discern no
basis to disturb the AJ's finding which was based on a detailed assessment
of the record and the credibility of the witnesses. See Gathers v. United
States Postal Service, EEOC Request No. 05890894 (November 9, 1989);
Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). Therefore, after a careful review of
the record, including appellant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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 (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:
April 29, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations