01972080
08-24-1999
Helen F. Moore, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Helen F. Moore, )
Appellant, )
) Appeal No. 01972080
v. ) Agency No. 95-0159
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges that she was discriminated against on the bases of race
(Black), sex (female) and in reprisal for prior �protected opposition
to prohibited employment discrimination�<1> when she was not selected
for a Medical Clerk position at the agency's Out-Patient Clinic in
Winston-Salem, North Carolina.<2> The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
The record reveals that appellant was a former agency employee who sought
and was denied reinstatement. Believing she was discriminated against as
referenced above, appellant sought EEO counseling and subsequently filed
an EEO complaint on July 18, 1994. On May 24, 1995, at the conclusion
of the original investigation, appellant requested that the agency issue
a final decision.<3>
The FAD found that appellant: (1) failed to establish a prima facie case
of sex discrimination because both selectees were female; (2) established
a prima facie case of race discrimination because one of the selectees
was outside of her protected class; and (3) failed to established a prima
facie case of retaliation because the selecting official did not learn of
appellant's �protected opposition to prohibited employment discrimination�
until after the selection. The FAD found that the agency articulated
a legitimate, nondiscriminatory reason for not selecting appellant,
namely that the selectee's experience working as a Receptionist at a
Nursing Home was exactly the kind of experience sought for the position.
The FAD concluded that appellant failed to present evidence that the
agency's explanation was a pretext for racial discrimination.
It is from this decision appellant now appeals. Appellant offers no new
contentions on appeal. The agency requests that we affirm its FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that appellant failed to establish a
prima facie case of sex discrimination since both selectees were female.
We also agree that appellant failed to establish that her non-selection
was motivated by racial discrimination since one of the two selectees
and the interviewer, whose recommendations were relied upon by the
selecting official, were of her same race; and because she failed to
rebut the agency's contention that the White selectee's experience was
�far superior� to appellant's.
We also agree with the FAD that appellant failed to establish a prima
facie case of retaliation. Appellant alleges that the selecting official
informed her at a September 30, 1994, meeting that she was not selected
because of her previous �protected opposition to prohibited employment
discrimination.� However, the selecting official denied making such
a statement. A third party who was present at the meeting had no
recollection of such statement being made and testified that appellant
attempted to raise the issue of her previous union involvement but that
the selecting official �steered the conversation away from those topics.�
Moreover, we note that the selecting official testified that he did not
even know about appellant's prior �protected opposition to prohibited
employment discrimination� until she brought it up at the September 30,
1994, meeting, more than five months after both selections had been made.
We also note that the prior activity at issue took place seven years
earlier at a different agency facility. Appellant has not presented any
evidence that her prior �protected opposition to prohibited employment
discrimination� played any role in the agency's decision not to select her
for a Medical Clerk position. Accordingly, we cannot infer retaliation.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
August 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 Appellant participated in a union
grievance alleging racial discrimination in 1987 while employed
at an agency facility in Salisbury, North Carlina. The Commission
views the filing of a labor grievance as participation in protected
activity, if the employee raised issues of unlawful employment
discrimination in the grievance. See Whipple v. Department of
Veterans Affairs, EEOC Request No. 05910784 (February 1, 1992).
2 The record establishes that there were five individuals selected
as Medical Clerks between January 1994, and April 1995, at the Out
Patient Clinic. However, appellant was only considered for two of those
positions, due to her status as a �transfer/ reinstatement eligible.� A
Black female was selected in February 1994, for one of these positions.
A White female was selected for the second position in May 1994.
3 By Memorandum dated November 27, 1995, the agency ordered a supplemental
investigation for further clarification. The supplemental investigation
was concluded on March 1, 1996.