0120070479
09-20-2007
Bertha Dunn, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Bertha Dunn,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120070479
Agency Nos. JQ05023; JQ050571
Hearing No. 450200600001X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 29, 2006, final order concerning
her equal employment opportunity (EEO) complaint alleging 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.
Complainant filed complaints on December 15, 2004, and May 16, 2005,
claiming discrimination based on race (black), sex (female), color, age
(D.O.B. 02/19/47), and reprisal for prior protected EEO activity when she
was [Complaint JQ05023] (a) denied a temporary promotion; (b) reassigned
to another section without proper office equipment; [Complaint JQ05057]
(c) not selected for Supervisory Material Handler; and (d) not selected
for Supervisory Packer. Following an investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ conducted a
hearing in June and August 2006, and issued a decision on September 5,
2006, finding that the agency did not discriminate against complainant.
At the time of the events herein, complainant was a Packer Leader at
the Distribution Center, Red River, Texarkana, Texas. She claimed that,
per past practice at the facility, she should have been assigned to the
next temporary vacancy; that she was more qualified than the selectees;
and that she had more supervisory experience. As to (a) and (c), the
agency advertised for a temporary supervisor, and chose RG (white, male,
D.O.B. 8/1/1952, no prior EEO activity), and he was later selected when
the permanent vacancy was announced. As to (d), the agency chose the FD
(white, female, D.O.B. 6/25/1952). As to (b), the agency stated that
complainant was advised that the office equipment was on order.
The selecting official (SO) stated that he based his selection
decisions on the resumes submitted and the applicants' performance
in the interviews; he asserted that he selected the best qualified
individuals for the positions. As to complainant, the SO stated that
he had received complaints from staff that she was domineering and
disorganized; in addition, he stated that complainant's resume did not
clearly identify her prior supervisory experience. Both the SO and the
concurring official described complainant as messy, disorganized, and
overbearing in her style of leadership. The AJ found that the agency
articulated legitimate, nondiscriminatory reasons for its selection
decisions and that, although complainant argued she was more qualified,
she did not present evidence of pretext.
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.
The Supreme Court has previously held that in the absence of evidence of a
discriminatory motivation, an employer generally "has discretion to choose
among equally qualified candidates...." Texas Department of Community
Affairs v. Burdine, 450 U.S. at 259. In addition, an agency manager
has discretion to choose from among applicants who have different, but,
in the manager's opinion, equally desirable qualifications. See Canhan
v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). The Supreme
Court recently addressed the question of comparative qualifications as
evidence of pretext and held that, to demonstrate pretext, the complainant
must show that her/his qualifications were significantly more superior
than those of the selectee. See Ash v. Tyson Foods, Inc., 546 U.S. 454
(2006).
After a review of the record in its entirety and consideration of
all statements and arguments submitted on appeal, including those not
addressed herein, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final order, because the AJ's ultimate
finding, that unlawful employment discrimination was not proven by a
preponderance of the evidence, is supported by the record.
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
_____9/20/07_____________
Date
1 The complaints were consolidated for investigation.
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0120070479
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070479