0120064536
03-27-2008
Linda C. Gross, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Linda C. Gross,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01200645361
Agency No. DFAS-IN-AS-05-070
DECISION
On July 27, 2006, complainant filed an appeal from the May 25, 2006, final
agency decision (FAD) 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 decision.
At the time of events giving rise to this complaint, complainant worked as
an Accounting Technician at the agency's Defense Finance and Accounting
Service (DFAS) facility in Indianapolis, Indiana. Complainant applied
for an Auditor position in the agency's Internal Revenue Section on
or about January 25, 2005. On May 4, 2005, complainant learned that
she had not been selected. On July 23, 2005, complainant filed an EEO
complaint alleging that she was discriminated against on the basis of age
(D.O.B. 01/30/48) and in reprisal for prior protected EEO [arising under
Title VII] when, on May 4, 2005, she learned she had not been selected
for the Auditor position.
At the conclusion of the 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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The FAD found, initially, that complainant failed to
establish a prima facie case of discrimination on the alleged bases. The
FAD found that no one on the selection panel was aware of complainant's
age or prior protected activity. Further, the FAD found that the selectee
is over the age of 40 and the difference in complainant's age and that
of the selectee (three years) was not sufficient to conclude that age
was a factor. Next, the FAD found that even had complainant established
a prima facie case of discrimination, the agency provided legitimate,
nondiscriminatory reasons for complainant's non-selection. The agency
claimed that the selection panel ranked candidates based on established
criteria and complainant was ranked tenth among the GS-7 candidates and
seventh among the GS-9 candidates. The FAD found that complainant failed
to produce evidence showing that the agency's reasons were pretextual.
The FAD, therefore, found that complainant failed to prove that she was
subjected to discrimination as alleged.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law"). Complainant offers no new arguments on appeal. The agency
contends that complainant's appeal is untimely.2 Notwithstanding,
the agency asks that we affirm the FAD.
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
Complainant also alleges discrimination based on reprisal for prior
protected activity. Complainant can establish a prima facie case of
reprisal discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination. Shapiro
v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish a
prima facie case of reprisal by showing that: (1) he or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
Next, to prevail in a disparate treatment claim such as this,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by
demonstrating that he or she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
Here, we find that complainant has failed to establish a prima facie
case of discrimination on the alleged bases. As to complainant's age
discrimination claim, she has shown that she is a member of a protected
class and has suffered an adverse action. The record reveals, however,
that the selectee is also over the age of 40. The record also reveals
that complainant is three years older than the selectee, which we find
to be an insufficient difference in age to establish an inference of
discrimination. Therefore, we determine that complainant failed to show
that a similarly situated individual not within her protected class was
treated more favorably than she. Further, all members of the selection
panel claimed that they were unaware of any of the applicants' ages.
Complainant has presented no evidence establishing otherwise. As to
reprisal, complainant has engaged in prior protected activity, however
all management officials involved in the selection process claimed to
have no knowledge of her prior protected activity. Further, complainant
has failed to establish a causal connection between her prior protected
activity and her non-selection. We find that complainant failed to
present any other evidence from which an inference of discrimination could
be drawn. Consequently, we find that complainant failed to establish
a prima facie case of discrimination.
However, assuming, arguendo, that complainant has established a prima
facie case of discrimination on the alleged bases, the agency has
articulated legitimate, nondiscriminatory reasons for its actions.
The selection panel claims that they ranked the candidates by the
approved criteria including education, knowledge of auditing, and
performance appraisals. The panel members claim that they interviewed
the top three candidates for each GS-level (GS-7, GS-9, and GS-11) and
did not interview complainant because she did not rank in the top three
for any of the GS-levels for which she qualified. Further, the selection
panel members claim that the selectee was chosen from the GS-7 level.
Finally, the selecting official (SO) claims that the panel recommended
the selectee because she was the second highest-ranked candidate and
the highest-ranked candidate withdrew from consideration.
In attempting to establish pretext, complainant claims that she has
worked at numerous positions at various levels within the agency and the
panel ignored her experience. Additionally, she notes that education
was one of the selection criteria and she has a Master's Degree in
Business Administration while the selectee only has a Bachelor's Degree.
Finally, complainant claims that she has the same level of experience and
computer experience as the selectee, but the selectee has no auditing
experience. The panel claims that it did take complainant's education
into account and awarded her more points than the selectee in that
category. Additionally, one of the panel members claims that compared
to the selectee, complainant had no auditing experience, very little
experience with analysis, and lacked leadership experience. As we do
not have the benefit of an AJ's findings after a hearing, as complainant
chose a FAD instead, we can only evaluate the facts based on the weight
of the evidence presented to us. Here, we find that complainant has
failed to present any persuasive evidence that the agency's reasons are
pretextual.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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 27, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The agency submitted documentation indicating that complainant received
the FAD on June 26, 2006 while complainant claims that she was not in
receipt of the FAD until June 27, 2006. Complainant filed her appeal
on July 27, 2006. We will assume for purposes of this decision, that
the appeal was timely filed.
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0120064536
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036