01a00409
04-25-2000
Serra Sampsell, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Serra Sampsell, )
Complainant, )
) Appeal No. 01A00409
v. ) Agency No. FNP-98-079
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
INTRODUCTION
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 sex (female), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e 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).
ISSUE PRESENTED
The issue presented is whether the agency properly determined that
complainant failed to establish by preponderant evidence that the agency
discriminated against her.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Custodian at the agency's Harpers Ferry National Historical Park.
On February 6, 1998, complainant received a letter informing her that
she was not selected for the position of Painting Worker for which
she applied. Further, she was informed of the name of the individual
selected for the position (the Selectee). She had seen the Selectee
being aided by her supervisor in completing his application for the
position on the last day of the application deadline. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a formal complaint on April 8, 1998.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested that the agency issue her a
final agency decision (FAD). On September 9, 1999, the agency issued
its FAD finding no discrimination. In particular, the agency found that
complainant stated a prima facie case of sex discrimination. Further,
the FAD held that the agency articulated a legitimate, nondiscriminatory
reason for its decision not to select complainant. Finally, the FAD
found that complainant failed to show that the agency's reasoning was
pretext for discrimination.
On appeal, complainant argues that the investigation failed to include a
witness who saw the Selectee receive assistance on his application from
her supervisor. Complainant alleges that the supervisor's assistance
gave the Selectee an unfair advantage over her application and that the
assistance was evidence that the Selectee was preselected for the vacancy.
Further, complainant argues that the investigation was inadequate and
contained several errors. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Complainant alleges disparate treatment on the basis of sex. A claim
of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corp. 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.
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. 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. St. Mary's Honor
Cen. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated legitimate, nondiscriminatory reasons for the personnel
actions at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transp., EEOC Request No. 05900159 (June 28,
1990); Peterson v. Department of Health and Human Serv., EEOC Request
No. 05900467 (June 8, 1990); Washington v. Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant has established a prima facie case
of sex discrimination, the burden shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. The agency
argues that the Selecting Official (SO) reviewed all the applications
for the position and selected the individual with the highest score, the
Selectee. Further, the SO averred that the Selectee had more experience
painting historical buildings and knowledge of paints and tools used
on historical buildings than complainant. In particular, the SO noted
that the Selectee had been a Painter Helper from 1988 to the date of his
selection while complainant only had worked for short periods of time
as a painter. The agency also argues that it wanted someone who could
assume the position in question without being provided any additional
training and that individual was the Selectee. Finally, when asked to
respond to complainant's arguments, the SO averred that he was not aware
of any assistance given to the Selectee on his application nor of any
preselection and that he does not have any problems working with females.
Upon review of the record, the Commission finds that the agency has
articulated legitimate, nondiscriminatory reasons for its action.
The burden now shifts to complainant to show that the agency's reasons
were pretext for discrimination. Complainant argues that the agency
preselected the Selectee and that the SO is uncomfortable working
around females. Upon review of the record, we find that complainant
fails to provide any evidence that the agency preselected the selectee
in a discriminatory manner. Further, complainant failed to demonstrate
that the SO made his selection based on sex. Accordingly, the Commission
finds that complainant has failed to show that the agency's action was
motivated by a discriminatory animus.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, we AFFIRM the agency's final decision.
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:
April 25, 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 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.