01991634
12-07-2001
Lesley M. Drucker, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Lesley M. Drucker v. U.S. Department of Agriculture
01991634
12-07-01
.
Lesley M. Drucker,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01991634
Agency No. 970003
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female) and age (over 40 years of age) 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. For the reasons stated
herein, the agency's FAD is affirmed.
According to the record, complainant was employed as one of two,
temporary GS-11 Cultural Resources Specialists (Archeologists) at a
South Carolina facility of the agency. In 1996, the agency consolidated
the two temporary positions into one permanent, GS-09/11 Archeologist
position. The one other temporary Archeologist (selectee) was selected
for the position and complainant's temporary appointment with the agency
expired on July 13, 1996. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint
alleging that the agency discriminated against her when it failed to
select her for the permanent GS-09/11 Archeologist position and separated
her from employment with the agency. Specifically, complainant stated
that the agency should have selected her for the permanent position
because she ranked highest on the Certificate of Eligibles for grades
09 and 11 and she has more education and experience than selectee,
and that the agency should not have terminated her employment.
The selecting official (SO) stated that, as required, he used the �Rule of
Three<1>� when he chose selectee who was one of the top three candidates
on both Certificates of Eligibles. The SO stated further that both
complainant and selectee were knowledgeable, but selectee displayed
better interpersonal skills with the personnel who work in the field,
which was important to the position.
An investigation was conducted and complainant was informed of her right
to choose either a hearing before an EEOC administrative judge (AJ) or an
immediate FAD. Complainant chose the latter. The agency issued a FAD,
in which it found no discrimination. Specifically, the agency found
that complainant established prima facie cases of discrimination based
on sex and age but failed to show that the legitimate, nondiscriminatory
reason articulated by the agency was pretextual.
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. McDonnell Douglas, 411 U.S. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason for
its action, we may proceed directly to determining whether complainant
satisfied her burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
The Commission finds that complainant did not show that the legitimate,
nondiscriminatory reason articulated by the agency was pretextual.
The SO essentially stated that complainant and selectee were equally
qualified for the position but selectee had better interpersonal skills
with persons he had to work with on a consistent basis. It is not
the function of this Commission to substitute its judgment for that
of a selecting official familiar with the present and future needs of
his or her facility and therefore in a better position to judge the
respective merits of each candidate unless other facts suggest that
proscribed considerations entered into the decision making process.
Shapiro v. Social Security Administration, EEOC Request No. 05960403
(December 6, 1996) (citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981); Jenkins v. Department of Interior, EEOC Request No. 05940284
(March 3, 1995)). In addition, complainant's employment with the agency
was terminated because she held a temporary appointment and it expired.
Accordingly, the complainant has failed to prove discrimination based
on sex or age. We AFFIRM the agency'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
___12-07-01_______________
Date
1According to the SO, the �Rule of Three� requires a selecting official
to select one of the top three candidates on a Certificate of Eligibles
for a position.