Lesley M. Drucker, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionDec 7, 2001
01991634 (E.E.O.C. Dec. 7, 2001)

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.