Samuella Walker, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 23, 2000
01986966 (E.E.O.C. Mar. 23, 2000)

01986966

03-23-2000

Samuella Walker, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Samuella Walker v. Department of Veterans Affairs

01986966

March 23, 2000

Samuella Walker, )

Complainant, )

)

v. )

) Appeal No. 01986966

Togo D. West, Jr., ) Agency No. 97-1946

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

INTRODUCTION

On September 18, 1998, complainant filed a timely appeal with

the Commission from a final agency decision (FAD) pertaining to her

complaint of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, 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.<1> The Commission accepts the appeal

in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at

29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented is whether complainant has established, by a

preponderance of the evidence, that the agency discriminated against her

on the bases of race (Black), sex (female), and age (45) when she was

not selected to the position of Contact Representative on March 13, 1997.

PROCEDURAL HISTORY

On May 7, 1997, complainant filed a formal EEO complaint claiming

she suffered discrimination based on race, sex, and age when she was

not selected to the position of Contact Representative. Following an

investigation of the complaint, complainant requested that the agency

issue a FAD. On August 21, 1998, the agency issued a FAD finding no

discrimination. Thereafter, complainant filed the instant appeal.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Lead Program Clerk (GS-5) in the Records Automation and Verification

Section, Operations Division, at the agency's Records Management Center

in St. Louis, Missouri. While a Lead Program Clerk, complainant received

"Highly Successful" and "Outstanding" performance ratings.

In February 1997, complainant applied for the Contact Representative

(GS-5/6) position. She qualified and was referred for consideration along

with four other candidates. Complainant's second line supervisor, VP,

contacted the selecting official (RMO1) to offer supportive information

regarding complainant's application. VP believed that complainant could

do well in the Contact Representative position and wanted to see her

move up.

The five candidates were evaluated by the Chief of Customer Service

Division (RMO1) and the Supervisory Program Analyst (RMO2). RMO2 sat

in on interviews and made observations which were given to RMO1, the

selecting official. RMO2 ranked the selectee and candidate WC higher

than the other three candidates, as both gave "very good answers in all

aspects of the interview process." The selectee and candidate WC gave

the best self assessment and demonstrated that they could "deal with

diverse groups of people." Complainant was ranked lower by RMO2, because

she "seemed to struggle on a couple of the questions." RMO2 concluded

that "she may have a little difficulty with the type of position she

is applying for." Although RMO2 recommended the selectee and WC, RMO1

stated that he believed the selectee and complainant to be the top two

candidates. RMO1 chose the selectee because he had experience dealing

with the public and good work habits. Although complainant had better

input experience, RMO1 did not select her because he had often observed

her talking to others about non-VA business, being away from her desk,

and taking too many smoking breaks. Because the Contact Representative

duties included answering the phones, RMO1 wanted someone who would stay

at their desk and could deal well with people.

Complainant's immediate supervisor, JS, testified that she had no

problem with complainant regarding her smoking breaks or spending time on

non-business matters. According to JS, complainant does her job well.

Moreover, complainant's second line supervisor does not recall hearing

that complainant was not at her work site or spent too much time on

non-VA business. She found complainant's performance to be "well above

average" and was disappointed for complainant that she was not selected.

On March 12, 1997, complainant was informed of the agency's selection.

ANALYSIS AND FINDINGS

Racial and Sex Discrimination

Generally, discrimination claims are examined under the three-part

analysis first enunciated in McDonnell Douglas Corporation v. Green, 411

U.S. 792 (1973). For complainant to prevail, she must first establish

a prima facie case of discrimination by presenting facts that, if

unexplained, reasonably give rise to an inference of discrimination,

i.e., that a prohibited consideration was a factor in the adverse

employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco

Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to

the agency to articulate a legitimate, nondiscriminatory reason for its

actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, the complainant bears the

ultimate responsibility to persuade the fact finder by a preponderance of

the evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Cen. v. Hicks, 509 U.S. 502 (1993).

In the instant case we find that complainant has established a prima facie

case of racial and sex discrimination by showing that: 1) she belongs

to the protected groups; 2) she applied for and was qualified for the

position for which the employer was seeking applicants; 3) she was denied

the position; and, 4) another equally or less qualified individual outside

the protected class received the position. Complainant is a qualified,

black, female that applied for the Contact Representative position,

that was given to a white, male.

In the FAD, the agency contends that complainant was not selected

because she was frequently seen away from her desk, talking to others

about non-business matters, and taking smoking breaks. Further, the

selecting official indicated that the selectee performed well in the

interview, was experienced in working with the public, and seemed to

have good work habits.

Complainant has 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 some witnesses

indicated that RMO1 made racial/sexist jokes and feel that he could

discriminate, particularly against blacks. Further, it appears suspect

that RMO1 relied on complainant's allegedly excessive time away from her

work station, while it was not considered problematic by her supervisors.

However, complainant has not established, by a preponderance of the

evidence, that her non-selection was motivated by discriminatory animus

towards complainant's race or sex. In fact, complainant admitted that

RMO1 had promoted her in the past and believed that his current actions

were motivated by personal retaliation. Moreover, the selectee was

recommended for selection by RMO2, whom complainant does not contend

was affected by race or sex. Therefore, we agree with the agency that

complainant failed to establish, by a preponderance of the evidence,

that she was discriminated against on the bases of race and sex.

Age Discrimination

In an ADEA case, complainant may establish a prima facie case by showing

that she is in the protected group (over 40), and was treated less

favorably than other similarly situated employees outside her protected

group. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 878

(1996). In this case, we find that complainant has failed to establish

a prima facie case of age discrimination. While complainant is within

the ADEA's protected group and was not selected, the selectee was also a

member of the protected class. The selectee was fifty-one years old.<2>

Accordingly, we find that complainant has not established that she was

discriminated against on the basis of age.

Accordingly, based on the entire record, including arguments and evidence

not specifically discussed herein, we AFFIRM the agency's 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).

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:

March 23, 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 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

1On 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.

2We note that the Investigation cites 51 as the age of the selectee,

while the FAD refers to the selectee as 57. In either instance, the

selectee is within the ADEA's protected group.