01986966
03-23-2000
Samuella Walker, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Samuella Walker v. Department of Veterans Affairs
01986966
March 23, 2000
Samuella Walker, )
Complainant, )
)
v. )
) Appeal No. 01986966
Togo D. West, Jr., ) Agency No. 97-1946
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
INTRODUCTION
On September 18, 1998, complainant filed a timely appeal with
the Commission from a final agency decision (FAD) pertaining to her
complaint of unlawful employment discrimination 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.<1> The Commission accepts the appeal
in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether complainant has established, by a
preponderance of the evidence, that the agency discriminated against her
on the bases of race (Black), sex (female), and age (45) when she was
not selected to the position of Contact Representative on March 13, 1997.
PROCEDURAL HISTORY
On May 7, 1997, complainant filed a formal EEO complaint claiming
she suffered discrimination based on race, sex, and age when she was
not selected to the position of Contact Representative. Following an
investigation of the complaint, complainant requested that the agency
issue a FAD. On August 21, 1998, the agency issued a FAD finding no
discrimination. Thereafter, complainant filed the instant appeal.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Lead Program Clerk (GS-5) in the Records Automation and Verification
Section, Operations Division, at the agency's Records Management Center
in St. Louis, Missouri. While a Lead Program Clerk, complainant received
"Highly Successful" and "Outstanding" performance ratings.
In February 1997, complainant applied for the Contact Representative
(GS-5/6) position. She qualified and was referred for consideration along
with four other candidates. Complainant's second line supervisor, VP,
contacted the selecting official (RMO1) to offer supportive information
regarding complainant's application. VP believed that complainant could
do well in the Contact Representative position and wanted to see her
move up.
The five candidates were evaluated by the Chief of Customer Service
Division (RMO1) and the Supervisory Program Analyst (RMO2). RMO2 sat
in on interviews and made observations which were given to RMO1, the
selecting official. RMO2 ranked the selectee and candidate WC higher
than the other three candidates, as both gave "very good answers in all
aspects of the interview process." The selectee and candidate WC gave
the best self assessment and demonstrated that they could "deal with
diverse groups of people." Complainant was ranked lower by RMO2, because
she "seemed to struggle on a couple of the questions." RMO2 concluded
that "she may have a little difficulty with the type of position she
is applying for." Although RMO2 recommended the selectee and WC, RMO1
stated that he believed the selectee and complainant to be the top two
candidates. RMO1 chose the selectee because he had experience dealing
with the public and good work habits. Although complainant had better
input experience, RMO1 did not select her because he had often observed
her talking to others about non-VA business, being away from her desk,
and taking too many smoking breaks. Because the Contact Representative
duties included answering the phones, RMO1 wanted someone who would stay
at their desk and could deal well with people.
Complainant's immediate supervisor, JS, testified that she had no
problem with complainant regarding her smoking breaks or spending time on
non-business matters. According to JS, complainant does her job well.
Moreover, complainant's second line supervisor does not recall hearing
that complainant was not at her work site or spent too much time on
non-VA business. She found complainant's performance to be "well above
average" and was disappointed for complainant that she was not selected.
On March 12, 1997, complainant was informed of the agency's selection.
ANALYSIS AND FINDINGS
Racial and Sex Discrimination
Generally, discrimination claims are examined under the three-part
analysis first enunciated in McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973). For complainant to prevail, she must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Cen. v. Hicks, 509 U.S. 502 (1993).
In the instant case we find that complainant has established a prima facie
case of racial and sex discrimination by showing that: 1) she belongs
to the protected groups; 2) she applied for and was qualified for the
position for which the employer was seeking applicants; 3) she was denied
the position; and, 4) another equally or less qualified individual outside
the protected class received the position. Complainant is a qualified,
black, female that applied for the Contact Representative position,
that was given to a white, male.
In the FAD, the agency contends that complainant was not selected
because she was frequently seen away from her desk, talking to others
about non-business matters, and taking smoking breaks. Further, the
selecting official indicated that the selectee performed well in the
interview, was experienced in working with the public, and seemed to
have good work habits.
Complainant has failed to present evidence that, more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. In reaching this conclusion, we note that some witnesses
indicated that RMO1 made racial/sexist jokes and feel that he could
discriminate, particularly against blacks. Further, it appears suspect
that RMO1 relied on complainant's allegedly excessive time away from her
work station, while it was not considered problematic by her supervisors.
However, complainant has not established, by a preponderance of the
evidence, that her non-selection was motivated by discriminatory animus
towards complainant's race or sex. In fact, complainant admitted that
RMO1 had promoted her in the past and believed that his current actions
were motivated by personal retaliation. Moreover, the selectee was
recommended for selection by RMO2, whom complainant does not contend
was affected by race or sex. Therefore, we agree with the agency that
complainant failed to establish, by a preponderance of the evidence,
that she was discriminated against on the bases of race and sex.
Age Discrimination
In an ADEA case, complainant may establish a prima facie case by showing
that she is in the protected group (over 40), and was treated less
favorably than other similarly situated employees outside her protected
group. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 878
(1996). In this case, we find that complainant has failed to establish
a prima facie case of age discrimination. While complainant is within
the ADEA's protected group and was not selected, the selectee was also a
member of the protected class. The selectee was fifty-one years old.<2>
Accordingly, we find that complainant has not established that she was
discriminated against on the basis of age.
Accordingly, based on the entire record, including arguments and evidence
not specifically discussed herein, we AFFIRM the agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
March 23, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1On 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.
2We note that the Investigation cites 51 as the age of the selectee,
while the FAD refers to the selectee as 57. In either instance, the
selectee is within the ADEA's protected group.