01A45320
11-29-2004
Betty Beck, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Betty Beck v. Department of the Treasury
01A45320
11-29-04
.
Betty Beck,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A45320
Agency No. TD-02-3184
Hearing No. 170-2004-00103X
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.
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 reveals that complainant, a Secretary, in the agency's Bureau
of Public Debt, filed an EEO complaint on May 15, 2002, alleging that
she was subjected to discrimination because of her sex (female) when:
(1) She was not selected for the position of Program Analyst under
Vacancy Announcement Number 02-ECBB-013R in January 2002; and
She was not permitted to attend a Data Communications Concept class
on February 25, 2002 or an Intermediate Accounting Class on February
26, 2002.
Complainant further alleged that she was subjected to discrimination and
a hostile work environment because of reprisal (prior EEO activity) when:
(1) She was subjected to an investigation of her examination and use of
her supervisor's e-mail;
(2) She was issued a Suspension Notice on September 27, 2002;
(3) She was denied union representation on October 8, 2002;
(4) She was not a referred candidate for the position of Program Analyst
under Vacancy Announcement No. 03-RCBB-103B; and
(5) She was not allowed to attend the Basic Statistics class in May 2003.
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 issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant established a prima facie case of
reprisal discrimination, but failed to establish a prima facie case of
sex discrimination or hostile work environment. Even assuming arguendo,
that complainant established a prima facie case of sex and reprisal
discrimination, the AJ concluded that the agency articulated legitimate
nondiscriminatory reasons for its actions which were not shown to be
pretextual.
The agency's final order implemented the AJ's decision and this appeal
followed. On appeal complainant contends that the AJ erred in finding
that she was not subjected to discrimination and that the Report of
Investigation support her contentions.
After a careful review of the record, the Commission finds that
granting summary judgment was appropriate, as there were no genuine
issues of material fact in dispute. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to
be most favorable to complainant, we note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward her protected classes.
We find that complainant failed to establish a prima facie case of
sex discrimination when she was not selected for the Program Analyst
position and when she was not permitted to attend a data communications
concept course and intermediate accounting course. Complainant failed
to show that she was treated less favorably than similarly situated
males and failed to present any other evidence from which a reasonable
inference could be made that she was subjected to sex discrimination. Even
assuming arguendo, that complainant could establish a prima facie case
of sex discrimination, we find that the agency articulated legitimate
nondiscriminatory reasons which complainant did not show to be pretexual.
With regard to the nonselection, the undisputed evidence shows that the
two candidates selected for the Program Analyst positions were female,
like complainant, and they were eligible for and selected to fill the
positions at the GS-9 level.<1> The selecting official articulated that
she interviewed and considered only candidates on the best qualified
list who were at or eligible for the GS-9 level because she believed they
would require less training than candidates eligible at the lower levels.
Complainant contends on appeal that the agency's failure to initially
interview her for the Program Analyst position violated agency regulations
and proves pretext.<2> We disagree. Even if the selecting official's
decision to only interview GS-9 eligible candidates was later determined
to be incorrect, this fact is insufficient on its own to prove that
complainant was not interviewed and not selected for the position because
of her sex. This is especially true, where, as here, the candidates who
were selected, were of the same sex as complainant, female, and there
is no other evidence of record from which a discriminatory motive can
be inferred.
With regard to attending the courses, the agency articulated that
complainant was not permitted to attend a data communications concept
course and an intermediate accounting course because the courses were not
related to her job duties as secretary and that courses typically approved
for employees are those that relate to the employees' job duties.<3>
Complainant does not dispute the agency's contention that the courses
were not related to her job as secretary. Rather, complainant argues
on appeal, that a male employee in her branch was allowed to attend
the course. The record evidence shows however, that the male employee
with whom complainant compares herself, was not similarly situated to
complainant, as he was a programmer and complainant was a secretary.
With regard to complainant's reprisal discrimination claim, the agency
articulated legitimate nondiscriminatory reasons for its actions which
complainant did not show to be pretextual. Specifically, the agency
articulated that: complainant was denied union representation because as
a confidential secretary she was not a member of the bargaining unit;
complainant was investigated and subsequently suspended for accessing
and using her supervisor's e-mail without his knowledge or consent;<4>
complainant was not referred for selection for the Program Analyst
position advertised under vacancy announcement 03-RCBB-103R because
her rating and ranking score fell below the cut off score for referral
and that a blind application<5> process was used to determine rating
and ranking scores; complainant's request to attend a basic statistics
class was denied because the course was not related to her job duties as
secretary. Other than bare assertions, complainant has failed to show that
the agency's articulated reasons were pretextual or not worthy of belief.
With regard to complainant's hostile work environment claim, complainant
did not show that the complained of conduct was sufficiently severe or
pervasive to rise to the level of a hostile work environment nor did
complainant prove that the conduct was based on her protected status.
We discern no basis to disturb the AJ's decision. Therefore, after 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 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
____11-29-04______________
Date
1 The best qualified list separately listed
candidates eligible for selection at the GS-9 level and at the GS-7
level. Complainant was deemed eligible for selection at the GS-7 level.
2 Complainant asserts that agency regulations require that an agency
interview all candidates on the best qualified list if any candidate on
the list is interviewed. Complainant was granted an interview pursuant
to an administrative grievance she filed over the agency's failure to
initially interview her. The agency concluded that complainant did well
on the interview but the selectees were better qualified for the Program
Analyst positions.
3 The report of investigation contained a copy of the agency's
training policy which supported the agency's contention and provided in
relevant part, �Public Debt will, as resources permit, make available
to all employees the training necessary for the performance of the
employees' presently assigned duties or proposed assignment.� Report of
Investigation, Exhibit 627.
4 Complainant does not deny that she accessed her supervisor's e-mail
account but she claims she had a �business reason� to do so (e.g.,
to gather information to support her EEO complaint) and she attached
copies of her supervisor's e-mail messages (most of which was of a
personal nature and did not related to complainant's EEO complaint.)
Complainant's assertion on appeal that she had consent from her supervisor
to access his e-mail account, is contradicted by an earlier affidavit
complainant provided in which she stated under penalty of perjury that
her supervisor never gave her access to his e-mail account.
5 A blind application process conceals the identify of the applicants
during the rating and ranking process.