Lucille Dunlop, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 9, 2000
01a00397 (E.E.O.C. Feb. 9, 2000)

01a00397

02-09-2000

Lucille Dunlop, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Lucille Dunlop, )

Complainant, )

) Appeal No. 01A00397

v. ) Agency No. 98-1303

) Hearing No. 100-99-7162X

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

The complainant timely initiated an appeal from the agency's final

decision concerning her equal employment opportunity (EEO) complaint of

unlawful employment discrimination on the basis of age (DOB: September 7,

1950) in violation of the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The complainant alleges

she was discriminated against when she was not selected for promotion to

the position of Veterans Claims Examiner, GS-996-11, in either October

or November 1997. The appeal is accepted in accordance with EEOC Order

No. 960.001. For the following reasons, the Commission AFFIRMS the

agency's final decision.

When the matters at issue arose, the complainant was employed as

a GS-9 Veterans Claims Examiner at the agency's Regional Office in

Washington, D.C. Believing she was a victim of discrimination, the

complainant sought EEO counseling and, subsequently, filed a formal

complaint dated December 22, 1997. After an agency investigation,

the complainant requested a hearing before an EEOC Administrative Judge

(AJ). Following a hearing, the AJ issued a finding that the complainant

had not proven discrimination. The agency adopted the Administrative

Judge's decision as the agency's decision.

The AJ initially found that the complainant had established a prima

facie case of age iscrimination because five selectees, not in her

protected class, were selected for the five Claims Examiner positions.

However, the AJ also found that the agency, through the testimony of

the selecting official, had articulated legitimate, nondiscriminatory

reasons for the selections. Specifically, the Administrative Judge found

that the selecting official had testified that he selected the selectees

because they were technically competent, displayed good working relations,

and would make good team employees. The manager testified that he did

not select the complainant because she did not work well with others.

The Administrative Judge further found that the complainant had not

adduced probative evidence that the agency's articulation was a pretext

for age discrimination, that is, that age was the real reason for not

promoting the complainant. The Administrative Judge described record

evidence which corroborated the manager's testimony that the complainant

was technically very competent and helpful. He also described record

evidence which was consistent with the Manager's stated concern that the

complainant would not work as well as a team member as the selectees.

The Administrative Judge indicated that the complainant had not presented

sufficient evidence that her qualifications were so superior to any of

the selectees that discrimination should be found. The Administrative

Judge stated that, even more importantly, the complainant had not adduced

any evidence that her non-selection was because of age discrimination.

The Administrative Judge found that the Manager never spoke of anyone's

age and had promoted some persons over age 40, including those nearing

retirement.

On appeal, complainant contends that the AJ erred because the evidence

presented demonstrated that she was the better qualified than the five

selectees based on her prior job performance, awards, and technical

expertise as verified by her supervisor. The complainant also contends

that the agency did not prove their case.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as �such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.�

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a review of the entire record, including the hearing transcript

and affidavits, the Commission finds that the record contains evidence

which is adequate to support the Administrative Judge's findings.

Therefore, the Commissin upholds the Administrative Judge's finding that

the complainant failed to prove that the agency discriminated against

her based on her age.

Contrary to the complainant's appeal contention that the agency did

not prove its case, the complainant has the burden of proving that, more

likely than not, age was a determinative factor in one or more of the five

selections. On appeal, the complainant focuses on her technical skills

and work habits, strengths which were not questioned by the selecting

official. However, she does not point to any evidence in the record

which proves that at the time of the selections, the selecting official

had reason to believe that she would perform better as a member of a team

than would the selectees. She also has not provided evidence, such as

the selectees' prior performance appraisals, which would establish that

the selecting official had reason to believe that her technical skills

were so far superior to those of the selectees that age discrimination

should be inferred. In this respect, the Commission notes that both

parties erred when they focused on performance and behavior that occurred

after the selections were made, none of which could have been the basis

for the selecting official's selections.

For the above-stated reasons, we affirm the agency's final decision.

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:

February 9, 2000

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 of mailing. I certify that

the decision was mailed to complainant and the agency on:

_________________ ___________________________

DATE Equal Employment Assistant1 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.