Jeanne Spaulding, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01985907 (E.E.O.C. Jan. 19, 2000)

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.