01a33124_r
11-15-2004
Teresa Ligon, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Teresa Ligon v. Department of Labor
01A33124
November 15, 2004
.
Teresa Ligon,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A33124
Agency Nos. 8-06-150; 9-06-120; 01-06-030
Hearing No. 310-99-5610X
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 Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant is a Claims Examiner at the agency's Office of Workers'
Compensation Programs facility, in Dallas, Texas. Believing that she
had been subjected to discrimination based on race and in reprisal for
prior protected activity, complainant filed the three captioned formal
EEO complaints.
In July 1998, complainant filed a complaint (Case No. 8-06-150) claiming
she was discriminated against when:
On June 19, 1998 she was not selected for any one of three GS-0991-12
Workers' Compensation Claims Specialist positions advertised on April 28,
1998 under Vacancy Announcement DA-98-54.
In May 1999, complainant filed the second captioned formal complaint
(Case No. 9-06-120). Therein, complainant claimed that:
In May 1999, her work was scrutinized, in particular, loose mail; and
Her April 1, 1999 request for a unit transfer was denied.
At the conclusion of the investigation, complainant received a copy
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). Complainant noted that a third complaint
was forthcoming and requested that all three formal complaints be
consolidated.
In the third captioned complaint (Case No. 01-06-030), complainant claimed
she was subjected to unlawful employment discrimination in reprisal for
prior protected activity when:
She was not selected for Workers' Compensation Claims Examiner, GS-991-12
position, advertised under Vacancy Announcement No. DA 99-163.<2>
The AJ consolidated the three complaints and a hearing was held on October
9 and 10, 2002. Following the hearing, the AJ issued a decision finding
no discrimination.
The AJ found that complainant established a prima facie case of racial
discrimination and reprisal with respect to some of the claims; but that
he did not establish a prima facie case regarding the remaining claims.
The AJ nevertheless concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, and that complainant did not
establish that these reasons were a pretext for discrimination.
Regarding claim (1), the AJ found that the agency established that the
selectee was better able to mentor new examiners. The AJ noted that
while complainant worked with the agency longer than the selectee, this
factor alone did not render her more qualified for the subject position.
Further, the AJ found that complainant's assertion that she was the
only one qualified to do medical coding was unrelated to the selection.
Ultimately, the AJ concluded that the selecting official's testimony
was credible and his choice was appropriately supported by the record.
Regarding claim (2), the AJ determined that the agency provided ample
evidence that complainant was among the worse performers regarding
loose mail. The AJ therefore determined that the alleged scrutiny by
complainant's supervisor was not discriminatory. The AJ noted that,
although complainant suggested that the Supervisory Claims Examiner
was micro-managing and overbearing, evidence indicated that he was
non-confrontational and attempted to manage through e-mail, which the
AJ determined to be �hardly overbearing.�
Regarding claim (3), the record reflects that after serving a requisite
twenty-four months within the unit, an employee could obtain a transfer
pursuant to a labor-management agreement if a volunteer replacement was
available; but that in complainant's case, there were no volunteers, which
was an unprecedented situation. The AJ found that following complainant's
request for a transfer after the requisite twenty-four month period in the
unit, the Acting Regional Director entered negotiations with the union on
the matter to effect a transfer, and that as a consequence, a procedure
was implemented that allowed for transfers in complainant's circumstance.
Regarding claim (4), the AJ was persuaded by the reasons provided by
the selecting official. Specifically, the AJ determined that the record
supported a finding that the selectee's work benefitted the entire unit,
and was superior in quality to complainant's work. According to the
selecting official, complainant's work was average and she failed to take
the initiative to create solutions for the unit as the selectee did.
Finally, the AJ awarded complainant some attorney's fees and expenses
with respect to the investigation of the claims. The AJ determined
that the agency did not provide an appropriate investigation with regard
to the third complaint. As a result, the AJ allowed complainant's
attorney to conduct a limited investigation at the agency's expense.
Complainant was awarded $2,975 for his relevant attorney's fees and
expenses, and $530.75 for the court reporter. The AJ stated, however,
that because complainant did not prevail on the merits of her claims,
she was not entitled to any other remedies or reimbursement.
On March 13, 2003, the agency issued a final order fully implementing
the AJ's decision. While the AJ did not find discrimination, the agency
acknowledged the award for certain fees and expenses. According to
the agency, the court reporter fees have been paid and �A check to
[complainant's] attorney will be forthcoming.�
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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 Construction
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 Department 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 Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We agree that the agency has presented legitimate, non-discriminatory
reasons for its actions and that complainant has not shown that these
reasons were a pretext for discrimination.
Regarding claim (1), the District Director described the duties of a
senior claims examiner as �the older sibling for the claims examiners;�
that were responsible for leading, teaching and closely monitoring; and
that the position required considerable mentoring. When explaining why
she chose the selectees, the District Director noted that one selectee had
stellar work and also went to great lengths to help others. The District
Director noted that another selectee had written a memorable memorandum
to the file explaining why she had made a particular determination on a
Workers' Compensation-related matter; and that yet another selectee was
already doing many of the duties of the subject position. When asked
about complainant, the District Director noted that her work was �solid�,
but that she lacked enthusiasm and seem subdued during her interview.
Regarding claim (4) (the January 2000 non-selection), the selecting
official (Chief of Operations) acknowledged that she had narrowed her
selection to complainant and the selectee. The selecting official
stated that while complainant received a �superior� rating on her
evaluation and the selectee did not, the selecting official noted that
the selectee exceeded complainant's performance in some categories.
Further, the selecting official found that the selectee was pleasant,
descriptive and enthusiastic in his interview; but that complainant
chewed gum and appeared indifferent and passive. Based on the interview,
the selecting official believed that the selectee was a team player,
a trait she considered important to the position. The record also
reveals that although complainant worked for the agency for ten years,
in contrast to the five years worked by the selectees, the selecting
official did not give complainant's tenure additional weight, given the
competitive nature of the position.
Regarding claim (2), the Chief of Operations testified that complainant's
work area was �cluttered and disorganized.� Specifically making
reference to mail, the Chief of Operations stated that, aside from one
other individual, everyone else was organized but that complainant's
mail was not.
Regarding claim (3), (the denial of complainant's transfer), an agency
official stated that a union agreement required that if an individual
sought a transfer after serving twenty-four months, the individual could
leave if there was a volunteer replacement. The agency official stated
that when complainant requested a transfer there were no volunteers.
The agency official noted that this type of situation had not occurred
previously, and that a solution had to be reached in collaboration with
the union. The agency official noted that after an agreement was reached
with the union, complainant was transferred.
We note that complainant failed to present evidence that any of the
agency's actions were in retaliation for complainant's prior EEO activity
or were motivated by discriminatory animus toward complainant's race.
Complainant has not established that the agency's reasons were pretext
for discrimination. Consequently, we discern no basis to disturb the
AJ's decision.
Therefore, after a careful review of the record, we AFFIRM the agency's
final order.
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
November 15, 2004
__________________
Date
1The agency argues that complainant's appeal may be untimely, noting that
complainant received the decision on March 14, 2003 but did not file her
appeal until April 24, 2003. While acknowledging that complainant's
attorney received the decision on March 27, 2003, the agency contends
that the time limit begins from the date of receipt by the complainant.
The Commission disagrees. EEOC Regulation 29 C.F.R. � 1614.402(b)
clearly provides that if a complainant is represented by an attorney
of record, the thirty-day time period within which to appeal shall be
calculated from the receipt of the required documents by the attorney.
Therefore, we find that complainant's appeal is timely.
2The Commission notes that while the claims were not previously assigned
numbers, they are numbered here for clarity.