01A31717
02-23-2004
Frances K. Mueggenburg, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Frances K. Mueggenburg v. Department of Veterans Affairs
01A31717
February 23, 2004
.
Frances K. Mueggenburg,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A31717
Agency No. 200M-1268
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Rating Specialist, GS-12, at the Regional Office,
St. Louis, Missouri facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on September 27, 2002, alleging
that she was discriminated against on the bases of sex (female) and age
(D.O.B. 01/19/1952) when on June 30, 2000, she was not selected for the
position of Supervisory Veterans Representative/Coach, GS-996-12/13,
Vacancy Announcement No. 331-00-19.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing by an EEOC Administrative Judge (AJ), but
subsequently withdrew her request. Accordingly, the AJ remanded the
complaint to the agency for an immediate final agency decision based
on the investigative record. On December 12, 2002, the agency issued
a final agency decision.
In its FAD, the agency concluded that complainant established a prima
facie case of sex and age discrimination. Specifically, the agency found
that complainant is a member of protected groups by virtue of her sex and
age, and that she applied and was qualified for the subject position, but
was not selected. However, the agency found that management articulated
legitimate, non-discriminatory reasons for its action. The agency found
that complainant was not selected because she had the lowest scoring of
all 14 candidates. The agency also found that the criteria utilized to
rate and rank the 14 candidates included the interview worth 33 points,
education worth 15 points, and awards since 1997 worth 15 points, for a
maximum possible score of 63. The agency further found that complainant
received a total of 34 points. The agency noted that complainant received
3 points for education because she only had a high school diploma and
5 points for awards because complainant's records contained only two
awards. The agency also found that complainant received 26 points for the
interview because she displayed a poor attitude about the work she was
responsible for and the employees she would have coached or supervised.
Finally, the agency found the individuals at the top of the list received
54 points, 53 points and 51 points.
On appeal, complainant contends, among other things, that the questions,
rating and ranking criteria were subjective. Complainant argued that
management manipulated the figures to rank the candidates as they wanted.
Complainant contends that since 1997, she received a total of 11 awards
which should have been reflected in her personal file. Complainant also
contends that education was not part of the job requirement, and that
it should not have been used as a criterion. The agency requests that
we affirm its FAD.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Furnco Construction
Corp v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate a
legitimate, nondiscriminatory reason for its action(s). Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that the
agency's reason was pretextual, that is, it was not the true reason or
the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
Assuming arguendo, that complainant established a prima facie case of
discrimination based on her sex and age, the Commission finds that the
agency has articulated a legitimate, nondiscriminatory reason for its
actions. Specifically, we find that complainant was not selected because
she was not one of the top five candidates for the open positions.
The record reveals that complainant ranked 14 among 14 applicants.
The record further reveals that during the interview complainant's
attitude was poor. The record shows that complainant did not have a
good understanding of what the responsibilities of the positions were,
and her description of a �servant leader� was negative and inappropriate.
The burden returns to complainant to establish that the agency's
explanation was a pretext for discrimination. Upon review, the Commission
finds that the complainant has failed to do so. Complainant has failed
to present probative evidence that the selection process was tainted
by unlawful discrimination or that her qualifications were demonstrably
superior to those of the selectees. 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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
February 23, 2004
__________________
Date