Carol W. Wilson, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01973516 (E.E.O.C. Jan. 12, 2000)

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).