01973516
01-12-2000
Carol W. Wilson, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Carol W. Wilson v. Department of the Interior
01973516
January 12, 2000
Carol W. Wilson, )
Complainant, )
)
v. ) Appeal No. 01973516
)
Bruce Babbitt, ) Agency No. LLM-94-08
Secretary, )
Department of the Interior, )
Agency. )
______________________________)
DECISION
Carol W. Wilson (complainant) filed an appeal with this Commission from
a final decision of the Department of the Interior (agency) 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
(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq.<1> Complainant's
claim of discrimination is based upon her sex (female) and age (then
62), when in May, 1994, her position of Physical Scientist, GS-1301-13,
was abolished, and she was not interviewed or selected for a comparable
position in the Division of Applied Resource Sciences (DAR). The appeal
is accepted in accordance with EEOC Order No. 960.001.
On July 12, 1994, complainant filed a formal EEO complaint claiming
discrimination as referenced above. Complainant's complaint was accepted
for processing. Following an investigation, complainant requested a
final decision by the agency without a hearing. Accordingly, on March
11, 1997, the agency issued a final decision of no discrimination.
It is this agency decision which complainant now appeals.
At the time of the complaint, complainant was employed as a Physical
Scientist in the Geographical Information System Support System, of
the Bureau of Land Management's (BLM) Denver/Washington Office, Denver,
Colorado (GIS Branch). In approximately April, 1994, a decision was made
to abolish the GIS Branch, affecting approximately 11 employees.<2> All
but four employees (complainant, C1 (40, male), C2 (40, male) and C3 (50s,
male)) were quickly relocated to new positions. The record indicates
that the Acting Associate Service Center Director (RMO) (male, 46) was
asked to consider having any or all of the remaining four employees join
his staff in the DAR.
RMO testified that he was provided with information with respect to the
complainant, C1, C2 and C3. He further testified that he looked over some
qualifications and talked to some people in an effort to determine who
best fit his office. RMO also explained that his consideration focused
upon the projects that each individual was working on at that time.
According to RMO, C1, C2, and C3 were all currently working on assignments
that he anticipating doing in the future and included skills that he felt
were needed on his staff. RMO found the work complainant was performing,
at that time, to be focused in a different direction, more in line with
writing applications for the GIS software; a function which he did not
anticipate would be performed by his office. Specifically, RMO testified
that he choose C1 because he had a "geography" (cartography) background
and he did not have that expertise on his staff.<3> In addition, RMO
testified that he chose C3 because he did not have an archaeologist on
his staff.<4> Lastly, RMO testified, and the record shows, that he
chose C2 because, at the time, he was doing a significant amount of work
with his own resource staff on the watershed analysis initiative.
Complainant testified (and it is undisputed) that RMO failed to speak
to her directly regarding her qualifications prior to choosing C1, C2
and C3 to work in the DAR. Yet, RMO spoke to C1, C2 and C3 prior to
his selection. Complainant further argues that she had greater relevant
work experience than C2 and should have been chosen over him for the
placement. In addition, complainant testified that she had been working
with RMO's staff in a wider range of applications than C2. Specifically,
complainant testified that she had been working with "the botanist,
the soils person, and hazardous materials;" all sections under RMO.
Accordingly, complainant argues that she should have been chosen over C2.
FINAL AGENCY DECISION
The agency determined that complainant failed to show an inference of
discrimination based on sex and age when her position was abolished.
Specifically, the agency found from the record that all positions in the
entire GIS branch were abolished, which affected all persons regardless
of age and gender. In addition, the agency found that complainant
failed to show that she was treated differently from similarly situated
individuals outside her protected classes.
With respect to complainant's claim that RMO failed to interview
and select her for a position in the DAR, the agency determined that
complainant failed to present a prima facie case of discrimination
since she failed to show that she was treated differently from persons
outside of her protected classes. In addition, the agency found that
RMO articulated a legitimate, non-discriminatory explanation for not
considering complainant for the positions. Specifically, the agency
noted that the RMO explained that there were no vacancies in the DAR
that could have been competitively filled. However, RMO attempted
to place three persons at the DAR through the form of non-competitive
reassignments. As stated more fully above, the agency found that RMO
filled three positions pursuant to the most pressing needs at the DAR.
In addition, the agency found that complainant failed to provide evidence
of discriminatory animus.
ANALYSIS
Contrary to the agency, we find sufficient evidence exists to support
a prima facie case of sex and age discrimination. We find that the
agency improperly considered all 11 displaced employees in its analysis
when the record indicates that only four individuals were available for
reassignment at the time RMO made his selections. It is undisputed
that RMO selected three men (two of whom were 20 years younger than
complainant). Accordingly, we find that complainant presented a prima
facie case of age and sex discrimination.
We also find from the record that RMO articulated a legitimate,
non-discriminatory reason for non-selecting complainant. Specifically,
RMO explained that he chose C1, C2 and C3 because all were currently
working on assignments that he anticipating doing in the future and
possessed skills that he felt were needed on the staff. RMO also
testified that he chose C2 because, at the time of the selection, C2
was doing a significant amount of work with his staff on the watershed
analysis initiative.
In response to RMO's articulated, non-discriminatory reason for his
non-selection, complainant argues that she was more qualified than
C2 as a Physical Scientist and that she worked on a wider array of
applications with RMO's staff, including, but not limited to: (1)
for the last several years she worked with the DAR's Botanist on a
Special Status Plan project; (2) in 1992, she co-authored a paper with
the DAR's Botanist; (3) she provided technical support to the DAR's
Soil Scientist on watershed management in the Mount Garfield area,
Colorado; (4) she worked with the DAR's Hazardous Materials Section
in entering the contamination data for the Lee Acres landfill site in
the new ARC/Info Software; (5) she was appointed by the DAR's Chief of
Hazardous Materials Section to be on BLM's national team for inventorying
hazardous material sites; (6) she provided documents and advice on GIS
applications for Hazardous Materials on several occasions at the DAR's
request; and (7) she was assigned by the former Service Center Director
to work with the DAR's Chief of Biological Resources on the Environmental
Protection Agency's Environmental Mapping Assessment Program project.
In addition to arguing that she was more qualified than C2, complainant
notes that she was not even considered for the position, as evidenced by
the failure of RMO to give her an interview. Complainant also asserts
that during a meeting with RMO after the selections, he explained to her
that he had no "desire" to take on the whole GIS section. In addition,
complainant asserts that RMO also stated "the work C2 does is associated
with the ecosystem management. C3 is a different breed of cat; he is on
the GIS technical side." Complainant argues that the use of the terms
"desire" and "breed of cat" indicates that the selections were based on
personal, not professional criteria and precluded a female selection.
Lastly, complainant argues that the statistical evidence shows that a
disproportionately low number of females occupy professional positions
in the higher grades.
While complainant argues that she was more qualified than C2 and worked
on more projects with the DAR's staff than C2, we find that complainant
failed to sufficiently rebut RMO's proffered explanation for his selection
of C2. RMO explained that he was not focusing on the qualifications
of each individual since he knew they were all minimally qualified.
Rather, RMO explained that he was interested in the work that was
being performed at the time of the selection with special interest in
the watershed analysis initiative. While complainant asserts that she
provided technical support on the watershed analysis initiative, it is
not clear from the record when this work took place. However, it appears
from the record that at the time of the selection, C2 was working on the
watershed analysis initiative on a daily basis. Accordingly, assuming
the truth and accuracy of complainant's stated qualifications and work
experience, we nevertheless find insufficient evidence of pretext.
Complainant also argues that the failure to be interviewed is indicative
of discriminatory animus. We disagree with complainant. The record
shows that RMO determined that C1, C2 and C3 were best suited on his staff
before he met with each of them, but met briefly with each of them prior
to making a final decision. We find this conduct consistent with RMO's
articulated, legitimate non-discriminatory reason for his non-selection.
We also note that the positions that C1, C2 and C3 filled at the DAR
were not competitively filled. Accordingly, RMO was not required to
follow any particular application/selection process.
In addition, complainant argues that RMO's use of the words "desire"
and "breed of cat" are indicative of sex and age bias. We disagree and
find that both terms were used in a proper context without an appearance
of bias.
Lastly, complainant argues that discrimination is evidenced by the
low number of women in professional positions at the agency. However,
the record does not indicate whether the number of women at the agency
is disproportionately low as compared to the number of females in the
applicant pool. In addition, RMO testified that there has been "a
very low, or non-existent" number of women applicants for professional
positions in the natural resources area. RMO also noted that there
is a very low turnover rate and that two women have been placed in
professional positions in his division since he had been selected as
the division chief (approximately 3 years). Accordingly, we cannot find
discrimination solely because an overwhelming majority of professional
positions are occupied by men.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the agency accurately set forth
the relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. On appeal, complainant generally
restates arguments previous made and discussed herein above. Moreover,
as complainant offered no additional persuasive evidence to support her
claims on appeal, we discern no basis to reverse the agency's finding
of no discrimination. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency decision
finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
1/12/00
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
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.
2 Complainant testified that she does not believe RMO had any input
in the decision to abolish the GIS Branch. (See complainant's rebuttal
testimony). In addition, based upon the testimony and evidence provided
in the record, we find that complainant is not contesting this action, but
rather the failure to be transferred to the Division of Applied Resource
Sciences (DAR) once the decision was made to abolish the GIS Branch.
3 Complainant does not dispute this selection (see Complainant's Rebuttal
Testimony).
4 Complainant does not dispute this selection (see Complainant's Rebuttal
Testimony).