01990232
05-31-2000
Linda Ragsdale, Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Linda Ragsdale v. Tennessee Valley Authority
01990232
May 31, 2000
Linda Ragsdale, )
Complainant, )
) Appeal No. 01990232
v. ) Agency No. 022197118
)
Craven H. Crowell, Jr., )
Chairman, )
Tennessee Valley Authority, )
Agency. )
____________________________________)
DECISION
Linda Ragsdale (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.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405). Complainant alleged that she was discriminated
against on the basis of age (52) when she was not selected for any of
the several Purchasing Agent, SA-2 positions she applied for after
receiving notice on October 3, 1996, that her current position as a
Contract Specialist would not be required to support the Purchasing
organization's future business plans.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Contract Specialist-Purchasing, SA-1. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on February 21, 1997. 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.
In its FAD, the agency found that complainant established a prima
facie case of age discrimination in that she was qualified and
applied for the positions in question, but was not selected in favor
of individuals outside her protected group.<2> The agency went
on to find that complainant failed to establish that the agency's
articulated nondiscriminatory reason for its actions was a pretext for
age discrimination. Specifically, the agency stated that complainant
was not selected because she was not as qualified as the selectees.
The various selecting officials stated that, unlike complainant, the
selectees were assertive "self-starters," able to work well independently,
and experienced in dealing with customers, telecommunications and
computers, as well as contracts in large dollar amounts. The agency also
noted that complainant's ratings on her annual performance evaluations
were consistently not as high as those of the selectees and that her
experience and job skills were more limited. The agency concluded that
complainant failed to establish by a preponderance of the evidence that,
but for her age, she would have been selected.
Complainant makes no contentions on appeal.<3> The agency requests that
we affirm its FAD.
FINDINGS AND ANALYSIS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue), the Commission agrees with the agency that
while complainant established a prima facie case of age discrimination,
she failed to prove by a preponderance of the evidence that, but for
her age, she would have been selected.
In reaching this conclusion, we note that complainant did not come
forward with any evidence to indicate that her qualifications were
observably superior to those of the selectees. See Bauer v. Bailor, 647
F.2d 1037. 1048 (10th Cir. 1981); Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998) (In a non-selection case, a
complainant may demonstrate pretext by showing that her qualifications
are observably superior to those of the selectee). A review of the
applications and performance appraisals of complainant and the selectees
does not suggest that complainant had any clearly superior qualifications
and, in fact, indicates that the selectees generally received higher
performance appraisals then complainant. Moreover, complainant did
not provide any evidence to suggest that her age was a factor in her
nonselection, other than the fact that she was 52 at the time of the
nonselection, while the selectees ranged in age from 35-50. This is
insufficient to establish that but for her age, complainant would have
been selected for one of the positions in question.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 31, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 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.
2 Although the agency concluded that complainant established a prima
facie case because three of the selectees were under the age of 40,
legal precedent holds that a prima facie case can be established if an
individual at least forty years of age is treated less favorably than
an otherwise similarly-situated individual who is under the age of 40,
or is considerably younger than she. See O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308 (1996); Carver v. Department of Interior,
EEOC Request No. 05930832 (May 12, 1994).
3 Complainant alleges that a civil action has been filed in connection
with this case and attaches a copy of a class complaint filed in the
United States District Court for the Eastern District of Tennessee at
Knoxville in April 1998. The agency does not mention this class action
and the evidence in the record is insufficient to determine whether it
incorporates the subject claim. We will therefore proceed to the merits
of complainant's claim.