01a00397
02-09-2000
Lucille Dunlop, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Lucille Dunlop, )
Complainant, )
) Appeal No. 01A00397
v. ) Agency No. 98-1303
) Hearing No. 100-99-7162X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the basis of age (DOB: September 7,
1950) in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The complainant alleges
she was discriminated against when she was not selected for promotion to
the position of Veterans Claims Examiner, GS-996-11, in either October
or November 1997. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission AFFIRMS the
agency's final decision.
When the matters at issue arose, the complainant was employed as
a GS-9 Veterans Claims Examiner at the agency's Regional Office in
Washington, D.C. Believing she was a victim of discrimination, the
complainant sought EEO counseling and, subsequently, filed a formal
complaint dated December 22, 1997. After an agency investigation,
the complainant requested a hearing before an EEOC Administrative Judge
(AJ). Following a hearing, the AJ issued a finding that the complainant
had not proven discrimination. The agency adopted the Administrative
Judge's decision as the agency's decision.
The AJ initially found that the complainant had established a prima
facie case of age iscrimination because five selectees, not in her
protected class, were selected for the five Claims Examiner positions.
However, the AJ also found that the agency, through the testimony of
the selecting official, had articulated legitimate, nondiscriminatory
reasons for the selections. Specifically, the Administrative Judge found
that the selecting official had testified that he selected the selectees
because they were technically competent, displayed good working relations,
and would make good team employees. The manager testified that he did
not select the complainant because she did not work well with others.
The Administrative Judge further found that the complainant had not
adduced probative evidence that the agency's articulation was a pretext
for age discrimination, that is, that age was the real reason for not
promoting the complainant. The Administrative Judge described record
evidence which corroborated the manager's testimony that the complainant
was technically very competent and helpful. He also described record
evidence which was consistent with the Manager's stated concern that the
complainant would not work as well as a team member as the selectees.
The Administrative Judge indicated that the complainant had not presented
sufficient evidence that her qualifications were so superior to any of
the selectees that discrimination should be found. The Administrative
Judge stated that, even more importantly, the complainant had not adduced
any evidence that her non-selection was because of age discrimination.
The Administrative Judge found that the Manager never spoke of anyone's
age and had promoted some persons over age 40, including those nearing
retirement.
On appeal, complainant contends that the AJ erred because the evidence
presented demonstrated that she was the better qualified than the five
selectees based on her prior job performance, awards, and technical
expertise as verified by her supervisor. The complainant also contends
that the agency did not prove their case.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a review of the entire record, including the hearing transcript
and affidavits, the Commission finds that the record contains evidence
which is adequate to support the Administrative Judge's findings.
Therefore, the Commissin upholds the Administrative Judge's finding that
the complainant failed to prove that the agency discriminated against
her based on her age.
Contrary to the complainant's appeal contention that the agency did
not prove its case, the complainant has the burden of proving that, more
likely than not, age was a determinative factor in one or more of the five
selections. On appeal, the complainant focuses on her technical skills
and work habits, strengths which were not questioned by the selecting
official. However, she does not point to any evidence in the record
which proves that at the time of the selections, the selecting official
had reason to believe that she would perform better as a member of a team
than would the selectees. She also has not provided evidence, such as
the selectees' prior performance appraisals, which would establish that
the selecting official had reason to believe that her technical skills
were so far superior to those of the selectees that age discrimination
should be inferred. In this respect, the Commission notes that both
parties erred when they focused on performance and behavior that occurred
after the selections were made, none of which could have been the basis
for the selecting official's selections.
For the above-stated reasons, we affirm the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 9, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant and the agency on:
_________________ ___________________________
DATE Equal Employment Assistant1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.