01A12266
06-12-2002
Bessie L. Kendall, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Fish and Wildlife Service), Agency.
Bessie L. Kendall v. Department of the Interior
01A12266
June 12, 2002
.
Bessie L. Kendall,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Fish and Wildlife Service),
Agency.
Appeal No. 01A12266
Agency No. FWS-99-031-R4
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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 record reveals that during the relevant time, complainant was
employed as a Personnel Management Specialist, GS-11, at the agency's
Atlanta, Georgia, facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on May 17, 1999, alleging that
she was discriminated against on the bases of age (D.O.B. 8/17/46) and
reprisal for prior EEO activity when she was not selected for either
of two available Personnel Management Specialist (Team Leader), GS-12,
positions on February 23, 1999.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that assuming, arguendo, complainant
established a prima facie case of age and reprisal discrimination, it
articulated legitimate, non-discriminatory reasons for complainant's
non-selection. Namely, that the selectees were better qualified for
the positions at issue. The agency further concluded that complainant
failed to show that this reason was mere pretext for age or reprisal
discrimination. Complainant makes no new contentions on appeal.
The agency requests that we affirm its FAD.
Complainant may establish a prima facie case of sex or age discrimination
in the non-selection context by showing that: (1) she is a member
of a protected class; (2) she was qualified for the position; (3)
she was not selected for the position; and (4) she was accorded
treatment different from that given to persons otherwise similarly
situated who are not members of her protected group or, in the case
of age, who are considerably younger than she. Williams v. Department
of Education, EEOC Request No. 05970561 (August 6, 1998); Enforcement
Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice
No. 915.002 (September 18, 1996). The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 , 253
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
As to complainant's non-selection for the position of Team Leader,
the selecting official (SO) stated that the selectees were chosen based
upon their strong staffing skills and classification abilities. Though
complainant contends that she had more experience that either of the
selectees, SO stated that experience was not as important in her selection
process as demonstrated ability. (Supplemental Report of Investigation,
Exhibit 2, page 17). Further, the SO stated that complainant did not
have the same level of skill in terms of customer service or ability to
get along with other employees as the selectees had displayed. (S.R.O.I,
Exhibit 2, page 9-13). We find that complainant has not shown that these
reasons are pretextual, nor has she shown that her qualifications were
�observably� superior to the selectees. We further find that complainant
has not shown that her non-selection was motivated by discriminatory or
retaliatory animus. Therefore, after a careful review of the record,
including complainant'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 (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
June 12, 2002
__________________
Date