01973680
01-14-2000
Dorothy V. Loftus, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Maritime Administration) Agency.
Dorothy V. Loftus v. Department of Transportation
01973680
January 14, 2000
Dorothy V. Loftus, )
Appellant, )
v. ) Appeal No. 01973680
) Agency No. 94-0268
Rodney E. Slater, ) Hearing No. 100-95-7027X
Secretary, )
Department of Transportation, )
(Maritime Administration) )
Agency. )
______________________________)
DECISION
Dorothy Loftus, complainant filed a timely appeal from a final agency
decision (FAD) concerning her equal employment opportunity (EEO)
complaint of unlawful employment discrimination on the bases of reprisal
(prior EEO activity) and age (8/23/39), in violation of Title VII of
the Civil Rights Act of 1964, 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.<1> Complainant alleges she was discriminated
against when: (1) she was not selected for the position of Secretary,
GS-318-8, advertised under Vacancy Announcement No. MA-93-73, and
(2) she was harassed and retaliated against when she was contacted by
a co-worker at the request of the selecting official to discourage her
from pursuing her complaint. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that complainant, a Secretary, GS-318-7, at the
agency's Office of Ship Operations, a sub-office of the Associate
Administrator for Shipbuilding and Ship Operations, Maritime
Administration, filed a formal EEO complaint with the agency on April
13, 1994, alleging that the agency had discriminated against her as
referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
administrative judge (AJ). Following a hearing, the AJ
issued a Recommended Decision (RD)<2> finding no discrimination.
The AJ found that complainant established a prima facie case of
discrimination because complainant is over the age of 40, was qualified
for and applied for the position at issue, but was not selected, and
the person selected was substantially younger than complainant.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
that complainant merely argued that she was more qualified because
she had more experience. Complainant failed to show how her relevant
experience of 28 years as a secretary outweighed the relevant experience
of the selectee (35 years old, no prior EEO activity). The AJ found that
because complainant admitted there was not a vast difference between her
qualifications and those of the selectee's, the selection could not be
overturned on the grounds of discrimination.
On the issue of retaliation, the AJ found that complainant failed to
prove a prima facie case of reprisal because she failed to show that
some adverse employment action was taken against her. Even assuming the
complainant had proven a prima facie case of reprisal, the AJ found that
there was no evidence of an intent to intimidate the complainant. The
agency adopted the AJ's recommended decision.
On appeal, complainant contends that there was a pattern of age
discrimination because she had been passed over for six other selections
in the last several years. In all of the previous instances, the
selectees were significantly younger, less experienced employees.
In addition, she alleges there had been other age discrimination
complaints brought against the agency in the recent past.
The agency responded that there was no pattern of age discrimination
because the selections to which complainant refers were made in different
units which were responsible for different functions.
Pursuant to 64 Fed. Reg. 37,644, 37659 (1999) (to be codified
at 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 [did not] exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, based on the analysis set forth in
McDonnell Douglas v. Green Corp., 411 U.S. 792 (1973) and Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981), the Commission
finds that the AJ's recommended decision is supported by substantial
evidence on the record and as such will not be disturbed on appeal.
Specifically, the AJ found that a panel of three individuals each
independently interviewed and rated the qualified applicants, including
complainant, and found her not to be among the top three candidates for
the position. Complainant failed to show that their ratings of her were
discriminatory or a pretext for discrimination.
CONCLUSION
Therefore, after a 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 final agency
decision.
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:
1/14/00 ______________________________
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________________________
Equal Employment Assistant
__________________________
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. 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.
2Since the AJ's decision was issued prior to the new regulations, we
refer to it as a Recommended Decision.