01a50262
04-08-2005
Sylvia J. Sewell, Complainant, v. Michael Leavitt, Administrator, Environmental Protection Agency, Agency.
Sylvia J. Sewell v. Environmental Protection Agency
01A50262
April 8, 2005
.
Sylvia J. Sewell,
Complainant,
v.
Michael Leavitt,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A50262
Agency No. 2003-0041-R4
Hearing No. 110-2004-00
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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 order.
The record indicates that at all relevant times, complainant was an
Administrative Technician, GS-303-7, at the agency's Region 4, Water
Management Division, Immediate Office in Atlanta, Georgia. Believing she
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal complaint alleging that she was discriminated
against on the basis of her age (D.O.B. 7/16/57) when, on March 4, 2003,
she was notified of her non-selection for the position of Management
Assistant, (GS-0344-08), in Region 4's Water Management Division,
advertised under Vacancy Announcement No. Reg-4-MP-2003-0293.<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ subsequently issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant established a prima facie case of
age discrimination because she was 46 years old at the time of the
non-selection, and the selectee was under age 40. The AJ further found
that the agency articulated legitimate, nondiscriminatory reasons for
its action; namely, that the notes taken by the selection panel members
indicated a preference for the selectee (SE), whom the panel members
deemed more confident and knowledgeable. Additionally, the selectee had
volunteered for special projects and had received several Employee of the
Year Awards that nationally recognized her level of performance, including
an award through EPA Region 4 (1993), a Federal Executive Board Award
(1993) and a national award (2001). In addition, the AJ found that the
selectee ranked higher than complainant in three of the four categories
of evaluation. Additionally, the AJ found that the Selecting Official
(SO) noted that SE provided more detailed information in response to
interview questions. Additionally, SO stated that she had found that
SE required less supervision, required less review for the accuracy of
her work and showed more initiative by voluntarily accepting special
assignments to gain experience in new tasks. Additionally, the AJ
noted SO's assertion that complainant experienced difficulties with the
timeliness of her work. The AJ also found that the panel members and
Selecting Official noted complainant's failure to appear for the initial
interview as unprofessional and discourteous.<2> The AJ then found that
complainant failed to show that the agency's reasons were pretexts for
age discrimination.
The agency's final order implemented the AJ's decision. On appeal,
complainant alleged that the AJ erred when: she did not correctly apply
relevant law, regulations, precedents, and guidance concerning decisions
based on motions for summary judgment; the AJ denied complainant's right
to discovery; the AJ erred when she concluded that the selecting official
followed standard merit promotion procedures to non-select complainant;
the AJ and Counsel for the agency engaged in ex parte communications
that disadvantaged complainant;<3> the AJ did not issue a decision on
complainant's motion to amend the complaint;<4> and the decision has
a substantial impact on implementation of the agency's approved merit
promotion program.
In response, the agency contends that there are no genuine issues of
material fact in dispute. The agency notes that although complainant
is correct in stating that there is no requirement that candidates be
interviewed by merit promotion panelists, the manual does not prohibit
panel interviews. Additionally, the agency contends that although
complainant argues that the panel should have rated and ranked the
candidates and submitted that information to the selecting official, the
merit promotion manual states that the use of a merit promotion panel
is at the discretion of the selecting official. As to complainant's
argument that the selectee failed to include her performance appraisal
and a Standard Form-50 in her application package, the agency argues
that even if true, complainant has not alleged that these documents
contained any information that would have changed the selection decision.
The agency also notes that complainant's motion to amend her complaint
was made after discovery had ended. Finally, the agency contends that
there were no ex parte communications which disadvantaged complainant.
The agency requests that we affirm the final order.
As this is an appeal from a FAD 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). In the
instant case, we discern no abuse of discretion by the Administrative
Judge. Administrative Judges have broad discretion in the conduct of
hearings. See 29 C.F.R. � 1614.109(e); Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110) at 7-8 to
7-14 (revised November 9, 1999); Bennett v. Department of the Navy,
EEOC Request No. 05980746 (September 19, 2000).
The agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may
be able to establish pretext with a showing that her qualifications
were plainly superior to those of the selectee. Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). In the instant case, complainant
has not shown that her qualifications rose to the level of being plainly
superior to those of the selectee.
Here, we find that the record contains no genuine issues of material fact
or credibility in dispute. We additionally find that no reasonable
fact-finder could conclude that but for age-based discrimination
complainant would have been selected for the position at issue. As to
complainant's arguments that the selectee may have been pre-selected,
and that the agency did not follow its own merit promotion procedures,
we note that even assuming both of these allegations to be true, this
in itself does not violate the ADEA.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, see Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003), and a preponderance of the record evidence
does not establish that discrimination occurred.
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:
April 8, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 The record indicates that only two individuals applied for the
position; complainant and the selectee who was not in complainant's
protected group. Both were referred to the selecting official for
consideration. A three-person panel was convened to review the position
description, interview the candidates, and provide written feedback to
the selecting official. The panel members were not asked to rate or
rank the candidates. Complainant was not selected.
2 Complainant denies knowing that an interview was scheduled at that
time, and contends that she was only contacted once for an interview,
and she was present as asked. We find that the question of whether
complainant knowingly missed her first scheduled interview is not a
genuine issue of material fact which must be resolved at trial, as the
agency articulated numerous other legitimate, nondiscriminatory reasons
for preferring SE for the position in question.
3 We find that the AJ did not engage in improper ex parte communications,
as there is no evidence that the matters discussed were anything other
than procedural in nature.
4 On July 6, 2004, complainant moved to amend her complaint to
include an allegation that as an act of retaliation, shortly after
complainant exercised her right to initiate EEO counseling concerning
her non-selection for the Management Assistant, (GS-0344-08) position,
complainant's position description as a GS-303-07 Administrative
Technician was revised in a manner that adversely affected her.
Complainant also sought to add a request for compensatory damages,
attorney's fees and other forms of relief. The agency opposed the motion,
and argued that the motion was untimely, and that the claim was not
like or related to the issue in the original complaint. It is within
the AJ's discretion to amend a complaint.