0120064058
03-20-2008
Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Complainant,
v.
Pete Geren, Secretary, Department of the Army, Agency.
Appeal No. 01200640581
Hearing Nos. 370-2006-0031X, 370-2005-00540X
Agency Nos. ARPOM05MAR07655, ARPOM04OCT07144
DECISION
On June 28, 2006, complainant filed an appeal from the agency�s May 19,
2006, final order concerning her equal employment opportunity (EEO)
complaint alleging 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. ��1614.405(a). For the following
reasons, the Commission AFFIRMS the agency�s final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant was an
applicant for employment at the agency�s Defense Language Institute
(DLI), Presidio of Monterey, California. The record reveals that
complainant had previously worked for the agency from 1989-1995 and was
terminated from her position of Training Instructor, Persian/Farsi
Department, DLI, on October 20, 1995.2 In 2004, complainant applied for
four different positions at DLI, part of her continuing effort to be
re-employed by the agency. She was notified on October 26, 2004 of her
non-selection for two positions, and in April 2005 of her non-selections
for two other positions.
Believing she was a victim of discrimination, complainant sought EEO
counseling. She subsequently filed a formal EEO complaint on November
30, 2004, alleging that she was discriminated against on the bases of
age and in reprisal for prior protected EEO activity arising under Title
VII when on October 26, 2004, she was notified that she had not been
selected for the position of Language Teacher, Vacancy Announcement:
FPS-4-001 (non-selection #1), or for the position of Test Development
Project Officer, Vacancy Announcement: #04-33E.
Complainant filed a second complaint on March 4, 2005, on the bases of
sex, national origin, religion, age and in reprisal for prior protected
EEO activity arising under Title VII, when she was notified that she was
not selected for a position in the Faculty Development organization,
Vacancy Announcement: WTEY0400001FD (non-selection #2); and she was not
selected for a position in the Curriculum Development organization,
Vacancy Announcement: FPS-04-001 (non-selection #3).
In a letter dated December 20, 2004, the agency dismissed her claim of
non-selection for the position of Test Development Project Officer, on
the basis of failure to state a claim. The agency stated that at the
time of the filing of her formal complaint, no selection had yet been
made and that therefore complainant was not aggrieved. At the conclusion
of each investigation, complainant was provided with a copy of the
report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant timely requested a
hearing for each complaint, which the AJ consolidated for hearing. The
AJ held a hearing on the two complaints on April 17, 2006, and issued a
decision on May 2, 2006.3 In her decision, the AJ found that with
respect to non-selection #1, complainant established a prima facie case
of age discrimination, but not a prima facie case of reprisal
discrimination, as the selecting official was unaware of her prior EEO
activity. She found that the agency articulated legitimate
non-discriminatory reasons for the non-selection, namely, that
complainant had previously been removed from the agency for being Absent
Without Leave (AWOL). The AJ then found that complainant had not shown
the agency�s reasons to be pretext for discrimination, in that the
inclusion in her application package of her last SF-50 form was not done
for discriminatory reasons, but rather was standard practice at the
agency. She also found that the selecting official�s consideration of
the reasons for her previous termination was not discriminatory, and the
fact that complainant maintains that her removal was unwarranted
(despite the outcome of her litigation of the matter), does not make the
agency�s reasons pretextual.
With respect to non-selection #2, the AJ concluded that complainant
established prima facie cases of sex, age and national origin
discrimination, but not a prima facie case of reprisal discrimination,
as the selecting official, and the members of panel which referred
applicants for an interview, were unaware of her prior EEO activity. The
AJ found that the agency articulated legitimate non-discriminatory
reasons for non-selection #2, namely, that complainant�s application was
not rated high enough by a three-member review panel to be referred for
an interview, as the panel found that those who were referred had more
relevant experience for the position in question. The AJ then found that
complainant had not shown the agency�s reasons to be pretext for
discrimination, in that she did not show that the panel�s preference for
candidates who had experience teaching other teachers was somehow
unreasonable or discriminatory. Complainant did not show that her
previous termination had in any way been considered by the panel when it
completed its rankings of the candidates.
With respect to non-selection #3, the AJ found that complainant
established prima facie cases of sex, age and reprisal discrimination,
but not of national origin or religion discrimination. She found that
the agency articulated legitimate non-discriminatory reasons for the
non-selection, namely, that although complainant had teaching
experience, she was not qualified to do curriculum development work.
Further, the selecting official stated that it was his understanding of
agency policy that an employee who had previously been removed for cause
could not be rehired. The AJ then found that complainant had not shown
the agency�s reasons to be pretext for discrimination. Although
complainant claimed that some other agency employee who had been removed
was subsequently rehired, she failed to present evidence of the person�s
identity or circumstances of their alleged rehiring.
The agency subsequently issued a final order adopting the AJ�s finding
that complainant failed to prove that she was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency�s �no-rehire� policy does
not suffice to show the agency�s legitimate, non-discriminatory reasons
and that their case should fail. Complainant focuses on what she
characterizes as the AJ�s reliance on the �no-rehire� policy for the
agency� legitimate non-discriminatory reasons for not hiring her for any
of the positions in question. The agency requests that we affirm its
final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. ��1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as �such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was
held.
An AJ�s credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony
so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, ��VI.B. (November 9,
1999). Based on our review of the record, we find that the AJ�s decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We find that complainant failed to
present evidence that the agency's actions were motivated by
discriminatory animus toward complainant's protected classes. The
existence of a �no-rehire� policy does not, in and of itself, establish
that the agency was refusing to hire complainant because of one or more
of her claimed protected bases. Whether the agency had adopted the
�no-rehire� policy in accordance with all the pertinent regulations is
secondary to the fact that complainant failed to show that it was
utilized for discriminatory reasons. Additionally, the �no-rehire�
policy was not the only reason put forth by the agency for complainant�s
rejection as a candidate for employment, and the other grounds are
sufficient to satisfy the agency�s burden of production. Complainant
ultimately failed to prove that any reason was pretextual.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the
agency�s final action, implementing the AJ�s finding of no
discrimination.
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
March 20, 2008 Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 Although complainant contested her removal at the time, it was upheld
in Ardalan v. Department of the Army, EEOC Petition No. 03990007
(April 21, 1999) and in her subsequent appeal to the U.S. Federal Circuit.
3 The AJ upheld the agency�s procedural dismissal, which we affirm.
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2 0120064058
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal
Operations P. O. Box 19848 Washington, D.C. 20036
6 0120064058