01a03445
08-10-2000
Elayne Bartner, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Elayne Bartner v. Department of Energy
01A03445
August 10, 2000
.
Elayne Bartner,
Complainant,
v.
Bill Richardson,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A03445
Agency No. 99(065)HQ/GC
Hearing No. 100-99-8236X
DECISION
The complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) complaint of unlawful
discrimination on the bases of sex (female), age (64), and retaliation
for her previous EEO activity 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. The complainant alleged that she was discriminated against
when she was not selected for the position of Assistant General Counsel
for International and National Security Programs, Vacancy Announcement
No. (VAN), ETR 99-ES-10-004. Pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405), the Commission accepts
the complainant's appeal from the agency's final action dated March 16,
2000, in the above-entitled matter.<1>
An EEO administrative judge (AJ), without a hearing, found that the
complainant failed to make a prima facie case of discrimination.
Specifically, the AJ found that the complainant failed to show that
she had applied for the position. Accordingly, the AJ found that the
agency did not discriminate against the complainant based on sex, age
or retaliation. The agency issued a final action implementing the AJ's
decision.
On appeal, the complainant argues that she did not apply for the position
because she knew it would be futile. Specifically, she argues that
she �would have applied again for the position, but for the accurate
knowledge of her employer's discrimination and that she knew she would be
discriminatorily rejected had she actually applied because of the course
of actions her employer embarked on.� The agency made no comments in
response to the appeal.
In International Brotherhood of Teamsters v. United States, 341 U.S. 324,
363-368 (1977), the U.S. Supreme Court held that a class of minority
bus drivers who had not applied for more favorable positions from their
employer could nonetheless recover for the employer's discriminatory
seniority and promotion policies under Title VII, because submitting
an application under those policies would have been futile. �When a
person's desire for a job is not translated into a formal application
solely because of his unwillingness to engage in a futile gesture,� the
Court reasoned, �he is as much a victim of discrimination as is he who
goes through the motions of submitting an application.� Id. at 365-66.
The Court therefore permitted each bus driver, on remand, to undertake
�the not always easy burden of proving that he would have applied for
the job had it not been for [the discriminatory] practices.� Id. at 368.
The Teamsters �futile gesture� doctrine has subsequently been applied
in other areas of employment discrimination law. See e.g., Malarkey
v. Texeco, Inc., 983 F.2d 1204, 1213 (2d Cir. 1993) (applying �futile
gesture� doctrine to ADEA claim); Davoll v. Webb, 194 F.3d 1116 (10th
Cir. 1999) (applying �futile gesture� doctrine to Americans with
Disabilities Act (ADA) claim).
We are not persuaded by the complainant's arguments on appeal. Here,
the record discloses that the selecting official (SO) requested that
the complainant and the selectee write a position description for the
consolidated position announced under VAN ETR 99-ES-10-004. The record
further discloses that during the investigation the complainant's
argument centered on her belief that the SO had preselected the selectee.
The complainant offers no evidence that the agency actively discouraged or
deterred her from applying for the reposted vacancy, which might obviate
her nonapplying, indicating instead that she expected the agency to
select another applicant. See Davis v. USPS, EEOC Request No. 05930173
(July 16, 1993). An employee's subjective belief about the futility of
applying will not, by itself, relieve her of that obligation. See Davoll,
194 F.3d at 1133 (citing Loulseged v. Akzo Nobel, Inc., 178 F.3d 731,
739 (5th Cir. 1999)).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final action
dated March 16, 2000, because the AJ's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 10, 2000
__________________
Date
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.