01985907
01-19-2000
Jeanne Spaulding, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Jeanne Spaulding, )
Complainant, )
) Appeal No. 01985907
v. ) Agency No. 961372
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning her claim that the agency violated the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq.<0> The
appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
the complainant based on age (64) when she was non-selected for the
position of Computer Operator, GS-322-6, in March 1996.
BACKGROUND
The complainant filed a formal complaint in April 1996 in which she
raised the issue set forth above. Following an investigation of the
complaint, the complainant requested a hearing but subsequently withdrew
that request. The agency thereafter issued a final decision (FAD) dated
June 25, 1998, finding no discrimination. It is from this decision that
the complainant now appeals.
In December 1995, the complainant, who is employed with the agency as a
Computer Assistant, GS-5, applied for the position of Computer Operator,
GS-322-6 (the Position). Although the complainant was found to be
eligible for the Position, she was not selected in favor of two other
Computer Assistants (Selectee 1, 30; Selectee 2, 48). In support of the
decision to select the selectees, the Position's selecting official (SO)
cited, in particular, their most recent performance appraisals and the
�Supervisory Appraisal for Employee Promotion� (SAEP) they received from
their supervisors. In this regard, Selectees 1 and 2 had, respectively,
received ratings of �Highly Successful� and �Outstanding� on their most
recent appraisals. Regarding the SAEPs, Selectee 1 received a score
of �3," which denoted that she was �fully competent� for promotion,
while Selectee 2 received a score of �5,� denoting that she �exceeds
expectations� and �warrants special mention for placement consideration.�
The record reveals that the complainant had received a rating of �Fully
Successful� on her most recent appraisal and a score of �2� on her
SAEP (denoting that her performance was acceptable but that there were
reservations about her promotability).
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in an ADEA case is
the three-step process articulated by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Loeb v. Textron, Inc.,
600 F.2d 1003 (1st Cir. 1979). The complainant has the initial burden of
establishing a prima facie case of discrimination. If the complainant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
The complainant must then prove, by a preponderance of the evidence,
that the legitimate reason articulated by the agency was not its true
reason, but was a pretext for discrimination.
We find that the complainant is able to establish a prima facie case
of age discrimination insofar as she was non-selected for the Position
in favor of the selectees, both of whom are substantially younger than
she. See O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308 (1996);
Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981). The agency now
has the burden of articulating a legitimate, nondiscriminatory reason
for the challenged action. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981). We find, based on the testimony of the SO,
that the agency has met this burden. Specifically, the SO testified
that Selectees 1 and 2 were chosen based on their performance ratings
and SAEPs.
At this point, the complainant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination. The
complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
Id. at 519 (emphasis in original). In a non-selection case, pretext may
be demonstrated where the complainant's qualifications are shown to be
plainly superior to those of the selectee(s). Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). An employer, however, has the discretion
to choose among equally qualified candidates. Canham v. Oberlin College,
666 F.2d 1057, 1061 (6th Cir. 1981).
We find that the complainant has not established pretext. Not only
has she not demonstrated that her qualifications for the Position were
�plainly superior� to those of either Selectee 1 or Selectee 2, but
she has offered no evidence indicating that age played any part in the
selection process. Accordingly, we find that the complainant has not
established that her non-selection for the Position was discriminatory.
CONCLUSION
It is the decision of the Commission to AFFIRM the FAD and find the
complainant has not established that she was discriminated against as
alleged.
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:
01-19-00
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
01 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.