01974710
09-09-1999
Mary C. Landry, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Mary C. Landry, )
Appellant, )
) Appeal No. 01974710
v. ) Agency No. 94 (77) SPRO
) Hearing No. 270-95-9035X
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (White), color
(light-brown), sex (female), reprisal (prior EEO activity), and age
(D.O.B: 9/12/42), in violation of Title VII of the Civil Rights Act of
1964, 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. Appellant alleged she was discriminated against
when: (1) she was disqualified from competing for a GS-560-9/12 Budget
Analyst position that was filled on January 9, 1994, and (2) she was not
selected for the position of Logistics Management Specialist, GS-346-5
(target level GS-11), in February, 1994 under the upward mobility program.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
Following an investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Following a hearing<1>, the AJ issued a Recommended Decision (RD),
finding no discrimination. The agency's FAD adopted the AJ's findings of
no discrimination. It is from this decision that appellant now appeals.
The record reveals that during the relevant time, appellant was employed
by the agency as a secretary, GS-318-07, at the Strategic Petroleum
Reserve Project Management Office (SPRPMO) in New Orleans, Louisiana.
In December 1993, the agency issued a vacancy announcement for the
position of Budget Analyst, GS-560-09/11/12, for which appellant applied.
Also in December 1993, the agency issued a vacancy announcement for the
position of Logistics Management Specialist, GS-346-05, target level GS-11
(upward mobility position), for which appellant applied. Ten candidates,
including appellant were referred for selection. The selection panel
was composed of three selecting officials (SOs). In February 1994,
a Black female candidate (S1), who was under the age of 40, and the
youngest of the applicants was selected for one of the positions.
Budget Analyst position
The AJ concluded that appellant failed to establish a prima facie case of
race, color, sex and age discrimination. Appellant did not qualify for
selection to the Budget Analyst position. Assuming that appellant had
established a prima facie case of race, color, sex and age discrimination,
the AJ found that the agency articulated a legitimate non-discriminatory
reason for disqualifying appellant. Specifically, appellant did not
have sufficient GS-7 experience in budget or accounting work to meet
minimal qualifications; therefore, she was not qualified for the position.
Appellant's experience was either clerical or at the GS-6 level. Whereas
the selectee had three years of experience as an operating accountant
at the agency, and six months of this experience was at the GS-11 level.
The AJ determined that appellant failed to establish that the agency's
articulated reason was a pretext to mask unlawful discrimination. The AJ
found that appellant did not provide any evidence that she was qualified
to compete for the Budget Analyst position. Appellant conceded that
she had never done GS-7 level accounting work, and that she did not have
specialized experience at the GS-7 level.
Logistics Management Specialist position
The AJ concluded that appellant established a prima facie case of race,
color and age discrimination. One of the selectee's, S1, is a Black
female who at the time of the selection was under 40 years of age.
However, the AJ determined that appellant failed to establish a prima
facie case of sex discrimination. Appellant did not demonstrate that
similarly situated employees who are male; thus, not in her protected
class, were treated differently under similar circumstances with respect
to her nonselection. S1 and the other three selectees are female.
With respect to race, color and age discrimination, and assuming that
appellant had established a prima facie case of sex discrimination, the AJ
concluded that the agency articulated legitimate nondiscriminatory reasons
for not selecting appellant. The AJ determined that appellant's race,
color, sex and age had nothing to do with her nonselection. Appellant
was not as qualified as S1. S1 was selected because she was one of the
best qualified candidates. She had initiative, was a self-starter,
could work with limited supervision and was a team player. She had
knowledge of the program, was articulate and could write. The other
three selectees who were White females, age 40 or older, were selected
as top candidates for the same reasons. Additionally, S1 interviewed
extremely well. Also, the AJ found that S1 had the desire and drive to
improve herself and advance. Whereas appellant did not have the desire
and drive that S1 and the three other selectees possessed.
The AJ determined that appellant failed to establish that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The AJ found that the record did not reveal that appellant was better
qualified than S1. Furthermore, appellant did not show that the agency
considered S1's race or that the three SOs who recommended S1 as one of
four top candidates did so because of her race and color. Furthermore,
the AJ found that appellant did not show that she was not selected
because she was over the age of 40.
After a careful review of the entire record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that appellant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
towards appellant's race, color, sex, and age. Therefore, the Commission
discerns no basis to disturb the AJ's findings of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to 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:
9/09/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 During the hearing
appellant withdrew her reprisal allegations.