01a42985
10-18-2004
Donna L. Wheelis, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Donna L. Wheelis v. U.S. Department of Agriculture
01A42985
October 18, 2004
.
Donna L. Wheelis,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A42985
Agency No. USDACRO20567
Hearing No. 280-2003-04185X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order dated April 2, 2004, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
The record reveals that complainant, a Processor, GS-7, in the Payoff
Section of the Loan Administration Branch at the agency's Centralized
Servicing Center in St. Louis, Missouri, filed a formal EEO complaint
on April 3, 2002, claiming that the agency discriminated against her
on the bases of race (black), sex (female), age, and reprisal when
on January 2002, she was not selected for an Information Technology
Specialist Position.<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant did not establish a prima facie case
of age and reprisal discrimination, but that she established a prima
facie case of race and sex discrimination.
The AJ further found that the agency articulated legitimate,
nondiscriminatory reasons for complainant's non-selection. Specifically,
the AJ stated that the selecting officials testified that they had prior
work experience with the selectees, when the selectees worked as their
subordinates, and that prior work experience was the basis for their
determination regarding these selections. The AJ noted, for example
that one of the selectees was chosen because of experience with the
�DAVOX� system, which the AJ found was a unique system used by the
agency in the subject position. The AJ further noted, for example,
that another selectee was chosen because of hands-on experience with
foreclosures, and the processing and managing information technology in
the foreclosure field.
The AJ further found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. The AJ specifically noted that complainant claimed
that the selectees were �groomed� for their positions. However, the AJ
concluded, that the only testimony regarding favoritism was a thirty-day
detail for which complainant was not eligible. The AJ also concluded
that any preselection against complainant was not discriminatory since
the selecting officials were not aware that complainant was applying
for the subject position.
On July 7, 2004 the agency issued a final order that implemented the
AJ's decision.
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 Pillman 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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792.
For complainant to prevail, he must first establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell
Douglas,411 U.S. at 802; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See 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. See
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record reflects that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant for the subject
position. The selecting officials testified that the selectees were
chosen because of their prior work experience with the selectees as
subordinates, and because they possessed specialized experience for the
position that the complainant did not have.
The Commission further finds that the only evidence of discriminatory
motive was complainant's perception that the selectees were �groomed�
for the positions. In support of her argument, complainant stated that
one of the selectees was detailed to a position in the information
technology section. However, it is undisputed, that complainant was
not eligible for this detail. The Commission notes that favoritism by
itself does not violate Title VII (or the ADEA) if it is not grounded
on a prohibited basis. See Goosetree v. State of Tennessee, 796 F.2d
854, 861 (6th Cir.1986). Complainant has failed to proffer probative
evidence demonstrating that the agency's selection decision was based on
a basis prohibited by Title VII or the ADEA. Thus, we find complainant's
assertions are unsupported by the evidence of record.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant. We discern
no basis to disturb the AJ's decision. Therefore, after a careful review
of the record, 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
October 18, 2004
__________________
Date
1The record reflects that the duties of
this position included development and maintenance of computer software
applications and technology; providing reports; assistance with developing
and monitoring quality, timeliness, and key volume indicators; development
and maintenance of work flow processes and desktop work procedures;
and establishment of plans for forecasting work volume.