01a01481
08-02-2000
Anita A. Wulf v. Department of Justice
01A01481
August 2, 2000
.
Anita A. Wulf,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A01481
Agency No. B-98-2277
Hearing No. 350-99-8008X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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. and
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). Complainant alleges
she was discriminated against on the bases of age (55) and in reprisal
for prior EEO activity when:
(1) in October 1997, she was non-selected for a paralegal position; and
in March 1998, she was non-selected for a paralegal position.<2>
For the following reasons, the Commission affirms the agency's final
decision.
The record reveals that complainant, a GS -7 legal clerk at the agency's
Office of the United States Trustee in Phoenix, Arizona, filed formal
EEO complaints with the agency on December 18, 1997, and April 27, 1998,
alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
recommended decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of age
discrimination for the first paralegal position, because the selectee,
not in complainant's protected class, was selected for the position.
The AJ concluded also, that complainant had established a prima facie case
of reprisal discrimination for the second paralegal position because the
selecting official knew of complainant's prior EEO activity. The AJ also
found that a causal connection between the complainant's EEO activity and
the adverse action (her non-selection) could be inferred from the close
proximity in time between the two events. See Burrus v. United Telephone
Co., 683 F. 2d 339, 343 (10th Cir.), cert. denied 459 U.S. 1071 (1982).
The AJ further concluded, however, that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
selectees for the paralegal positions were better qualified for the
positions because each had more bankruptcy paralegal experience than did
complainant. The AJ found also that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext to
mask unlawful discrimination/retaliation. In reaching this conclusion,
the AJ found that even if true, complainant's assertions that: 1) her
supervisor did not want to lose her as a clerk, 2) that the agency does
not like to promote from within and favors external applicants, and 3)
the claim that the selecting official had made the decision not to select
complainant before the interviews, do not amount to discrimination under
the ADEA.
The agency's final decision accepted the AJ's finding of no
discrimination. Complainant makes no new contentions on appeal, and
the agency requests that we affirm its final decision.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. 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 age. We discern no basis to
disturb the AJ's decision. 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 agency's final decision.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
August 2, 2000
___________________
Date
____________
Date
1 On 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.
2The record reflects that complainant filed two separate EEO complaints
that were consolidated under Complaint No. B-98-2277.