0120090703
03-19-2009
Emeline B. Ladeau, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Emeline B. Ladeau,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120090703
Agency No. 5X1L06028
Hearing No. 550-2007-00409X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 27, 2008 final order concerning her equal
employment opportunity (EEO) complaint alleging 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 of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.
Complainant alleged that the agency discriminated against her on the
bases of race (Asian), national origin (Filipino), age (58), disability,
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when she was not selected for the position of
Child Development Program Assistant (CC-03) in July 2006.1
The agency investigated the complaint, and thereafter complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
entered a decision by summary judgment concluding the evidence did not
establish that discrimination had occurred. The agency issued its final
order adopting the AJ's decision. The instant appeal followed.
Briefly, the AJ determined that the record reflected that complainant
worked at the agency as a Child Development Program Leader, CC-04, until
January 2006, when she was removed from her position on the grounds of
negligence in failing to provide proper supervision for children in
her care. On May 18, 2006, complainant filed an application for new
employment with the agency for the position of Child Program Assistant,
CC-03. Complainant was not placed on the referral list because the
selecting official requested candidates willing to start at CC-01 level
for budgetary reasons. Complainant did not indicate that she was willing
to start at CC-01. Eight applicants were selected for the referral list
from CC-01 list. Three selectees were chosen from the referral list.
In addition, the selecting official stated that she was looking for
applicants who had "Spousal Preference," as spouses of active duty
military personnel. Complainant did not have Spousal Preference.
The AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its selections decisions, which complainant failed to
prove were pretext. The AJ found that complainant offered nothing but
speculation and conclusions in her assertions that people she previously
worked with were in "cahoots" to discriminate against her. The selecting
official in the instant case did not know complainant. The AJ noted that
even if complainant had made the referral list, it was unlikely she would
have been selected given that she had previously been terminated from
her position for failing to provide proper supervision to a child. Thus,
the Commission agrees that even assuming that complainant could establish
a prima facie case on any basis, she did not show that the agency's
reasons for not selecting her were a pretext for discrimination.2
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 order,
because the Administrative Judge'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 (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 19, 2009
__________________
Date
1 The Administrative Judge's decision inadvertently omitted the basis
of disability in its description of the issue presented in this case.
2 In a footnote, the AJ noted that the agency dismissed complainant's
claim regarding her termination because she did not seek counseling
within 45 days of her removal and because she raised the removal in
a grievance process that allows for claims of discrimination to be
raised. The AJ affirmed the dismissal and the Commission likewise affirms
the dismissal.
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0120090703
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090703