Elayne Bartner, Complainant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionAug 10, 2000
01a03445 (E.E.O.C. Aug. 10, 2000)

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.