01a55090
12-29-2005
Ruby L. Ezell, Complainant, v. Bill Baxter, Chairman, Tennessee Valley Authority, Agency.
Ruby L. Ezell v. Tennessee Valley Authority
01A55090
December 29, 2005
.
Ruby L. Ezell,
Complainant,
v.
Bill Baxter,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01A55090
Agency No. 0513-2003040
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Material Handler at the agency's Rogersville, Tennessee facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on May 13, 2003, alleging that she was discriminated against
on the basis of age (54 at relevant time) when management did not select
her for an un-advertised Procurement Contract Agent position on or about
April 7, 2003.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that assuming, arguendo, complainant
established a prima facie case of age discrimination, the agency
nonetheless articulated legitimate, nondiscriminatory reasons for
its actions. The FAD also concluded that complainant failed to show
that the agency's articulated reasons were a pretext for unlawful
age discrimination. On appeal, complainant contends that hiring and
promoting employees through the college recruitment plan is a pretext
for age discrimination as it excludes experienced older employees.
The agency requests that we affirm its FAD.
As a preliminary matter, we note that we review the decision on an appeal
from a FAD issued without a hearing de novo. 29 C.F.R. � 1614.405(a).
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).
She must generally establish a prima facie case by demonstrating that
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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In a non-selection case, pretext may be demonstrated by a showing that
complainant's qualifications are observably superior to those of the
selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams
v. Department of Education, EEOC Request No. 05970561 (August 6, 1998).
Here, we find that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The record shows that the agency's college
recruitment policy allows the agency to fill certain "entry-level
technical/professional positions" with candidates who have recently
received a college degree. The policy states that current agency
employees, who have received a college degree within the previous four
years, will receive first consideration for the relevant vacancies.
With respect to the position at issue, the record reflects that the
selectee received a masters degree within the prescribed time, but
that complainant did not have a college degree. The agency states
that because complainant did not meet the eligibility requirement of
having a college degree, she was not considered for the position.
With respect to complainant's contentions on appeal, we note that
the agency's college recruitment policy specifically states that only
entry-level positions are eligible to be filled through the program,
and complainant has not provided any evidence to show that this program
is used as a proxy for unlawful age discrimination. As such, we find
that complainant has not shown that the agency's articulated reasons for
its actions are pretextual. Accordingly, we affirm the agency's final
decision finding 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
December 29, 2005
__________________
Date