01980249
12-06-2000
Carolyn R. Eskew, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Carolyn R. Eskew v. Department of Veterans Affairs
01980249
December 6, 2000
.
Carolyn R. Eskew,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01980249
Agency No. 96-0686
Hearing No. 280-96-4258X
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq. <1> For the reasons that
follow, the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue on appeal is whether complainant has proven that the agency
discriminated against her based on disability (depression) when it failed
to promote her.
BACKGROUND
In 1982, the agency hired complainant as a clerk-typist, GS-4, at its
Kansas facility. In 1983, complainant received a promotion to the
position of Secretary to the Chief of Psychiatry, GS-5. She held that
position until 1990 when she was reassigned to two part-time positions
as a Secretary, GS-5.<2> Both positions were in centers within the
agency's Psychiatry Service. During the period in question, complainant
still held both positions. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint
alleging that the agency discriminated against her based on disability
(depression) when, in October 1995, it failed to promote her into a
Program Support Assistant<3>, GS-6/7, position.
Complainant stated that the agency's action was discriminatory because she
had more years of experience, more seniority, and more formal education
than the person selected for the Program Support Assistant position
(selectee). Complainant also stated that the selecting official (SO)
conducted an impromptu interview, rather than a formal interview, with
her in which she questioned complainant's skills and abilities to perform
in the position, why complainant left her position as Secretary to the
Chief of Psychiatry, and whether complainant could say anything that would
�sway� her (the SO) to select her for the position. Finally, complainant
indicated that when she questioned the SO about her non-selection, the
SO responded in writing that complainant did not work well in complex
positions that have many interruptions.
The SO stated that she chose the selectee for the Program Support
Assistant position because she was better qualified than complainant.
The SO stated that she based her decision solely on ability to do the job.
Specifically, the SO indicated that when she observed complainant's work
on occasions prior to the non-selection, complainant had difficulty
completing complex tasks and dealing with interruptions. The SO stated
that the selectee, however, had been performing the duties of the position
satisfactorily for at least six months prior to her selection but just
did not have the new position title. Lastly, the SO indicated that she
was not aware that complainant had an impairment.
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 after a hearing,
finding no discrimination. The AJ concluded that complainant failed
to establish a prima facie case of discrimination based on disability.
Specifically, the AJ concluded that complainant did not establish that her
clinical depression substantially limits one or more of her major life
activities. The AJ further noted that assuming that complainant could
establish a prima facie case, she could not establish that the legitimate,
nondiscriminatory reason that the agency articulated was pretextual.
The agency issued a FAD concurring with the AJ's finding of no unlawful
employment discrimination based on disability. This appeal followed.
ANALYSIS AND FINDINGS
When a complainant relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the complainant to establish a prima facie case
of discrimination. Id. at 802. The burden then shifts to the agency to
articulate some legitimate, nondiscriminatory reason for its challenged
action. Id. If the agency is successful, the complainant must then
prove that the legitimate, nondiscriminatory reason articulated by the
agency is merely pretext for its discrimination. McDonnell Douglas,
411 U.S. at 804. This analysis is applicable to complainant's claim of
disability discrimination. Prewitt v. U.S. Postal Serv., 662 F.2d 292,
305 & n.19 (5th Cir. 1981).
Pursuant to 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).
The AJ found that the agency satisfied its burden to articulate a
legitimate, nondiscriminatory reason for its action when it stated that
complainant was not selected because the selectee was better qualified
than she for the Program Support Assistant position. The AJ further
found that complainant failed to present evidence that more likely than
not, the agency's articulated reason for its action was a pretext for
discrimination. The AJ concluded that complainant failed to establish
discrimination based on disability. Based on the record before the
Commission, we discern no basis for disturbing the AJ's finding of no
discrimination.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and argument and evidence not
specifically addressed in this decision, we AFFIRM the agency's finding
of no discrimination based on disability.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 6, 2000
__________________
Date
1On 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. The regulations, as amended, may also be found
at the Commission's website at www.eeoc.gov.
2Complainant was reassigned due to a low performance rating given to
her by her second level supervisor. Complainant subsequently filed
an occupational stress claim with the Office of Workers' Compensation
Programs (OWCP) because of the stress she felt as a result of her
low performance rating and reassignment. OWCP approved complainant's
occupational stress claim in 1992.
3The Program Support Assistant position was created because the person
who was ultimately selected for the position requested a desk audit of
her job. She initially was the Secretary to the Chief of Psychiatry but,
through the desk audit, management determined that she was also performing
the duties of a previously-abolished position, that of Staff Assistant.