Bonnie J. Margeson, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 6, 2002
01A13404 (E.E.O.C. Sep. 6, 2002)

01A13404

09-06-2002

Bonnie J. Margeson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Bonnie Margeson v. Department of Veterans Affairs

01A13404

September 6, 2002

.

Bonnie J. Margeson,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A13404

Agency No. 200H-1461

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her 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 FAD.

The record reveals that during the relevant time, complainant was employed

as a Housekeeping Aid Work Leader at the agency's Veterans Affairs Health

Care Network in Bath, New York. Complainant sought EEO counseling and

subsequently filed a formal complaint on January 20, 2000, alleging that

she was discriminated against on the basis of her sex (female) when

she was not selected for the position of Housekeeping Aid Supervisor,

Vacancy Announcement Number 00-08.

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. Complainant

requested that the agency issue a final decision.

In its FAD, the agency concluded that complainant established a prima

facie case of sex discrimination. The FAD further found that the

agency articulated legitimate, nondiscriminatory reasons for its action.

Specifically, the FAD found that the selecting official, complainant's

second-line supervisor (M1), based his selection decision on the responses

to his questions during the interview and the behaviors he has observed

personally, as he had considerable knowledge about the abilities of the

three candidates. M1 felt that the selectee was the best candidate.

The FAD concluded that M1 desired a selectee who would keep him

regularly informed, and who desired management oversight, direction and

intervention, and not someone who desired to make independent decisions.

The FAD concluded that M1 felt the male selectee fit this description

better than complainant. The FAD then concluded that complainant failed

to establish by a preponderance of the evidence that the agency's

reasons were pretextual. Complainant makes no new contentions on appeal.

The agency requests that we affirm its FAD.

As an initial matter we note that, as this is an appeal from a FAD issued

without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's

decision is subject to de novo review by the Commission. 29 C.F.R. �

1614.405(a). The allocation of burdens and order of presentation of

proof in a Title VII case alleging disparate treatment discrimination is

a three step procedure: complainant has the initial burden of proving,

by a preponderance of the evidence, a prima facie case of discrimination;

the burden then shifts to the employer to articulate some legitimate,

non-discriminatory reason for its challenged action; and complainant must

then prove, by a preponderance of the evidence, that the legitimate reason

offered by the employer was not its true reason, but was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

We find that complainant established a prima facie case of discrimination

on the basis of sex because she is a member of a protected group, and

she was denied a promotion in favor of a male applicant.

Having made a prima facie case, the burden of production now shifts to the

agency to articulate some legitimate, nondiscriminatory reason for its

action. Texas Department of Community Affairs v. Burdine, 450 U.S. 867

(1984). In the instant case, M1 asserts that all three candidates were

qualified for the position in question. See Record of Investigation

(ROI), Affidavit of M1. M1 also states that he selected the selectee,

and not complainant, because he gave better answers during the interview.

Id. M1 also states that he felt the selectee had skills and abilities

that made him better suited for the job, such as the ability to adapt

rapidly to changing situations, and to act more as a teacher than merely

a supervisor or disciplinarian. Id.

We now turn to complainant to establish that the agency's reasons

are pretextual. Complainant argues that she is better qualified

for the position in question because she has been employed by the

agency substantially longer than the selectee, and asserts that she has

received numerous �Outstanding� and two �Highly Successful� evaluations.

Complainant also asserts that when she asked M1 why she was not selected

he did not answer her, but simply told her she had done nothing wrong,

and said that the decision was not based on seniority. Complainant

also contends that, to her knowledge, M1 has never hired a woman for a

supervisory role. For all of these reasons, complainant argues that M1

was motivated by a discriminatory animus toward her sex.

We begin by noting that witness statements of record corroborate

complainant's contention that M1 has never hired a female for a

supervisory position and that one witness of record also opines that

M1 has subjected his male and female employees to disparate treatment.

However, the dispositive issue in this case is whether complainant's sex

was a factor in the agency's decision not to select complainant for the

specific position at issue. After a careful review of the record, it is

the decision of the Commission that complainant has not met her burden

of establishing by a preponderance of the evidence, that the agency's

reasons for this action are pretext for discrimination based on sex.

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

September 6, 2002

__________________

Date