01A13871
10-24-2002
Linda Childs, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Linda Childs v. Department of Veterans Affairs
01A13871
October 24, 2002
.
Linda Childs,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A13871
Agency No. 200K-1263
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of 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 Veterans Service Representative, GS-10, at the agency's Veterans
Affairs Regional Office in Fargo, North Dakota. Complainant sought
EEO counseling and subsequently filed a formal complaint on March 6,
2000, alleging that she was discriminated against on the basis of age
(D.O.B. January 29, 1949) when she was not selected for the position of
Veterans Claims Examiner (Ratings Specialist), GS-996-11/12.
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
requested that the agency issue a final decision. The agency issued a
FAD finding no discrimination occurred. This appeal followed.
The record reveals that on September 29, 1999, the agency announced a
vacancy for the position of Veterans Claims Examiner (Ratings Specialist),
GS 11/12, at the Fargo, North Dakota facility. Complainant applied
and was one of seven qualified candidates that were scheduled to be
interviewed. As a result of the interviews, complainant was one of four
candidates recommended to the Selecting Officer (SO). Out of these for
finalists, the selectee (S1) (D.O.B. July 1, 1973) was chosen.
In its FAD, the agency concluded that complainant established a prima
facie case of discrimination on the basis of age. However, the FAD found
that the agency articulated a legitimate, non-discriminatory reason for
its actions. Specifically, S1 was knowledgeable about medical terminology
and anatomy, knowledgeable about the relevant laws and regulations for
the position, skilled at reviewing cases and extracting information for
appeals, and got along well with other rating board members. The FAD also
found that complainant did not provide evidence that the agency's reason
was more likely than not, pretext for discrimination, and did not show
that her qualifications were demonstrably superior to S1's. On appeal,
complainant contends that the agency erred in finding no discrimination
and requests that the FAD be reversed. The agency requests that we
affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). Under the ADEA, it is "unlawful for an employer
... to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's age." 29 U.S.C. � 623(a)(1). When a complainant
alleges that he has been disparately treated by the employing agency as
a result of unlawful age discrimination, "liability depends on whether
the protected trait (under ADEA, age) actually motivated the employer's
decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
141 (2000). Complainant's age "must have actually played a role in the
employer's decision-making process and had a determinative influence on
the outcome." Id.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). In this case, it is undisputed
that complainant has established a prima facie case of discrimination,
thus, we proceed to analyze whether the agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC
Request No. 05950842 (November 13, 1997); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995). In nonselection
cases, pretext may be found where the complainant's qualifications are
demonstrably superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981).
The agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). Although
complainant contends that she is more qualified than S1 because she had
more years of experience, we note that mere length of service does not
make an individual more qualified to meet the needs of the organization,
McGettigan v. Department of the Treasury, EEOC Appeal No. 01924372
(February 24, 1993), nor does it automatically make an applicant more
qualified. Ford v. Department of Health and Human Services, EEOC Appeal
No. 01913521 (December 19, 1991). The Commission finds that complainant
properly established a prima facie case of age discrimination, however,
we also find that complainant failed to present evidence that, more
likely than not, the agency's articulated reasons for its actions were
a pretext for discrimination. In reaching this conclusion, we note that
although complainant was highly qualified for the position, she has not
demonstrated that her age was a determinative factor in the agency's
decision not to select her.
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
October 24, 2002
__________________
Date