01A24817
09-11-2003
Yvonne R. Estrade, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Yvonne R. Estrade v. Department of Agriculture
01A24817
September 11, 2003
.
Yvonne R. Estrade,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A24817
Agency No. 010181
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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., and 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 Program Analyst, GS-343-12, in the Payroll/Personnel Branch, Finance
Services Division, National Finance Center, in New Orleans, Louisiana.
Complainant sought EEO counseling and subsequently filed a formal
complaint on December 6, 2000, alleging that she was discriminated
against on the bases of race (White), national origin (Hispanic), sex
(female), and age (D.O.B.2/29/48), when she was not selected for the
position of Supervisory Program Analyst, GS-0343-13, advertised under
Vacancy Announcement NFC-00-085.
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 found that complainant established a prima facie
case of discrimination on each of the alleged bases. Ultimately, the
agency concluded that complainant failed to establish that the agency's
articulated, legitimate non-discriminatory reasons for its actions were
pretexts for discrimination.
On appeal, complainant contends that the FAD erred and requests that
we reverse the finding of no discrimination. 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 disparate treatment claims such as these, 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 explanations
are 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).
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). Complainant has
not done so, nor has she presented any other evidence which contradicts
the testimony of the selecting official, or which undermines his
credibility as a witness. Additionally, with regard to complainant's
ADEA claim, complainant must demonstrate that her age "actually played a
role in the employer's decision-making process and had a determinative
influence on the outcome." Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 141 (2000). Complainant has failed to do so in this case.
Ultimately, 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). Additionally,
an employer has even greater flexibility in filling a management position
due to the nature of such a position. Wren v. Gould, 80 F.2d 493, 502
(6th Cir. 1987). We find that complainant failed to establish that the
selecting official's articulated reasons for not selecting complainant
were unworthy of belief. Further complainant has not demonstrated that
the selecting official was motivated by discriminatory animus towards
complainant's protected bases. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the FAD.
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
September 11, 2003
__________________
Date