0120082676
03-26-2009
Linda S. Freeman, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.
Linda S. Freeman,
Complainant,
v.
Paul Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120082676
Agency No. 07NCRWPLSF8
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 5, 2008 final decision concerning her equal
employment opportunity (EEO) complaint alleging 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.
Complainant alleged that the agency discriminated against her on the
bases of sex (female) and age (53) when:
1. On March 26, 2007, complainant was involuntarily reassigned from the
position of Lease Building Treasury Team Leader; the agency failed to
follow up on a February 15, 2007 desk audit for the same position; and
2. On February 15, 2007, complainant learned that she had not been
selected for the position of Treasury Team Leader, GS-1101-14 under
vacancy announcement number WPZ138DE06. Complainant alleges further
that she was not interviewed for the position due to an unwarranted
disciplinary action.
At the conclusion of the investigation, complainant was informed of
the right to request a hearing before an EEOC Administrative Judge,
or alternatively, to receive a final agency decision. In its FAD, the
agency found that complainant had not been discriminated against on any
alleged basis. The agency determined that even assuming arguendo, that
complainant established a prima facie case of race and sex discrimination,
the agency proffered legitimate non-discriminatory reasons for its
actions, and complainant failed to demonstrate that the agency's reasons
were a pretext for discrimination. Regarding complainant's claim that
she was involuntarily reassigned from her position, the record indicates
that in March 2007, in an attempt to resolve branch wide issues in
complainant's work facility, an agency official temporarily took the
only employee in complainant's supervision as team leader, out of her
supervisory chain. However, complainant's duties were not changed and the
record indicates that complainant continued to manage the same properties
and perform the same duties she performed prior to the March 2007 action.
The record also reveals that complainant's job duties prior to March 2007,
were not supervisory. Moreover, the record indicates that the desk audit
complainant addresses in claim 1 was conducted at complainant's request.
The record indicates that despite the fact that complainant cancelled some
meetings and postponed others regarding the audit, eventually she and her
supervisor were interviewed. The agency indicates that as a result of
the meetings with complainant and her supervisor as well as the Office of
Personnel Management's classification standard for complainant's position,
it was determined that her position description was accurately classified
and her grade determination was correct.
Regarding complainant's non-selection claim, the record indicates that
complainant was not interviewed for the position at issue, because her
name did not appear among the list of eligible candidates. Consequently,
complainant was not selected for the position.
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since 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).
The Commission determines that the agency established legitimate
non-discriminatory reasons for its conduct. Specifically, the agency
indicated that complainant was not reassigned and that her pay and job
duties remained unchanged following the agency's action in March 2007.
In addition, the record indicates that a desk audit was conducted upon
complainant's request and a determination was made that her job was
properly classified. Regarding complainant's non-selection, the agency
indicates that complainant was not selected for the position because she
was not among the most qualified to fill the vacancy. The Commission
further finds that complainant failed to present evidence that more
likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination. Complainant fails
to provide evidence that the agency's conduct herein, was based on any
discriminatory animus toward complainant's race or sex.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
March 26, 2009
__________________
Date
2
0120082676
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120082676