Betty Beck, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01A45320 (E.E.O.C. Nov. 29, 2004)

01A45320

11-29-2004

Betty Beck, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Betty Beck v. Department of the Treasury

01A45320

11-29-04

.

Betty Beck,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A45320

Agency No. TD-02-3184

Hearing No. 170-2004-00103X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e 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 order.

The record reveals that complainant, a Secretary, in the agency's Bureau

of Public Debt, filed an EEO complaint on May 15, 2002, alleging that

she was subjected to discrimination because of her sex (female) when:

(1) She was not selected for the position of Program Analyst under

Vacancy Announcement Number 02-ECBB-013R in January 2002; and

She was not permitted to attend a Data Communications Concept class

on February 25, 2002 or an Intermediate Accounting Class on February

26, 2002.

Complainant further alleged that she was subjected to discrimination and

a hostile work environment because of reprisal (prior EEO activity) when:

(1) She was subjected to an investigation of her examination and use of

her supervisor's e-mail;

(2) She was issued a Suspension Notice on September 27, 2002;

(3) She was denied union representation on October 8, 2002;

(4) She was not a referred candidate for the position of Program Analyst

under Vacancy Announcement No. 03-RCBB-103B; and

(5) She was not allowed to attend the Basic Statistics class in May 2003.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

The AJ concluded that complainant established a prima facie case of

reprisal discrimination, but failed to establish a prima facie case of

sex discrimination or hostile work environment. Even assuming arguendo,

that complainant established a prima facie case of sex and reprisal

discrimination, the AJ concluded that the agency articulated legitimate

nondiscriminatory reasons for its actions which were not shown to be

pretextual.

The agency's final order implemented the AJ's decision and this appeal

followed. On appeal complainant contends that the AJ erred in finding

that she was not subjected to discrimination and that the Report of

Investigation support her contentions.

After a careful review of the record, the Commission finds that

granting summary judgment was appropriate, as there were no genuine

issues of material fact in dispute. We find that the AJ's decision

properly summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. Further, construing the evidence to

be most favorable to complainant, we note that complainant failed to

present evidence that any of the agency's actions were motivated by

discriminatory animus toward her protected classes.

We find that complainant failed to establish a prima facie case of

sex discrimination when she was not selected for the Program Analyst

position and when she was not permitted to attend a data communications

concept course and intermediate accounting course. Complainant failed

to show that she was treated less favorably than similarly situated

males and failed to present any other evidence from which a reasonable

inference could be made that she was subjected to sex discrimination. Even

assuming arguendo, that complainant could establish a prima facie case

of sex discrimination, we find that the agency articulated legitimate

nondiscriminatory reasons which complainant did not show to be pretexual.

With regard to the nonselection, the undisputed evidence shows that the

two candidates selected for the Program Analyst positions were female,

like complainant, and they were eligible for and selected to fill the

positions at the GS-9 level.<1> The selecting official articulated that

she interviewed and considered only candidates on the best qualified

list who were at or eligible for the GS-9 level because she believed they

would require less training than candidates eligible at the lower levels.

Complainant contends on appeal that the agency's failure to initially

interview her for the Program Analyst position violated agency regulations

and proves pretext.<2> We disagree. Even if the selecting official's

decision to only interview GS-9 eligible candidates was later determined

to be incorrect, this fact is insufficient on its own to prove that

complainant was not interviewed and not selected for the position because

of her sex. This is especially true, where, as here, the candidates who

were selected, were of the same sex as complainant, female, and there

is no other evidence of record from which a discriminatory motive can

be inferred.

With regard to attending the courses, the agency articulated that

complainant was not permitted to attend a data communications concept

course and an intermediate accounting course because the courses were not

related to her job duties as secretary and that courses typically approved

for employees are those that relate to the employees' job duties.<3>

Complainant does not dispute the agency's contention that the courses

were not related to her job as secretary. Rather, complainant argues

on appeal, that a male employee in her branch was allowed to attend

the course. The record evidence shows however, that the male employee

with whom complainant compares herself, was not similarly situated to

complainant, as he was a programmer and complainant was a secretary.

With regard to complainant's reprisal discrimination claim, the agency

articulated legitimate nondiscriminatory reasons for its actions which

complainant did not show to be pretextual. Specifically, the agency

articulated that: complainant was denied union representation because as

a confidential secretary she was not a member of the bargaining unit;

complainant was investigated and subsequently suspended for accessing

and using her supervisor's e-mail without his knowledge or consent;<4>

complainant was not referred for selection for the Program Analyst

position advertised under vacancy announcement 03-RCBB-103R because

her rating and ranking score fell below the cut off score for referral

and that a blind application<5> process was used to determine rating

and ranking scores; complainant's request to attend a basic statistics

class was denied because the course was not related to her job duties as

secretary. Other than bare assertions, complainant has failed to show that

the agency's articulated reasons were pretextual or not worthy of belief.

With regard to complainant's hostile work environment claim, complainant

did not show that the complained of conduct was sufficiently severe or

pervasive to rise to the level of a hostile work environment nor did

complainant prove that the conduct was based on her protected status.

We discern no basis to disturb the AJ's decision. Therefore, after 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 agency's final order.

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

____11-29-04______________

Date

1 The best qualified list separately listed

candidates eligible for selection at the GS-9 level and at the GS-7

level. Complainant was deemed eligible for selection at the GS-7 level.

2 Complainant asserts that agency regulations require that an agency

interview all candidates on the best qualified list if any candidate on

the list is interviewed. Complainant was granted an interview pursuant

to an administrative grievance she filed over the agency's failure to

initially interview her. The agency concluded that complainant did well

on the interview but the selectees were better qualified for the Program

Analyst positions.

3 The report of investigation contained a copy of the agency's

training policy which supported the agency's contention and provided in

relevant part, �Public Debt will, as resources permit, make available

to all employees the training necessary for the performance of the

employees' presently assigned duties or proposed assignment.� Report of

Investigation, Exhibit 627.

4 Complainant does not deny that she accessed her supervisor's e-mail

account but she claims she had a �business reason� to do so (e.g.,

to gather information to support her EEO complaint) and she attached

copies of her supervisor's e-mail messages (most of which was of a

personal nature and did not related to complainant's EEO complaint.)

Complainant's assertion on appeal that she had consent from her supervisor

to access his e-mail account, is contradicted by an earlier affidavit

complainant provided in which she stated under penalty of perjury that

her supervisor never gave her access to his e-mail account.

5 A blind application process conceals the identify of the applicants

during the rating and ranking process.