01995552
01-16-2002
Sharon Bradley v. Department of the Treasury
01995552
January 16, 2002
.
Sharon Bradley,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01995552
Agency No. TD-97-1344
Hearing No. 110-98-8319X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges she was discriminated
against on the bases of sex (female) and disability (overweight) when
she was not selected on or about May 9, 1997 for the EEO Specialist
GS-260-12 position.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a GS-11 EEO Specialist at the
agency's Georgia District Office, filed a formal EEO complaint with the
agency on August 15, 1997, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination.
The AJ issued the following findings of fact. Complainant is five
foot four inches tall, weighs 298 pounds and is approximately a 130 to
140 pounds overweight. Complainant entered duty in September, 1983
as a Clerk. In 1986, she became an Audit Accounting Aid. In 1987,
complainant was promoted to a GS-9 Tax Auditor position. Subsequently,
complainant became an Informants Claim Examiner at the same grade from
1990 through 1991 and in 1991 became a Tax Auditor Technician at the
GS-9 level until 1995. During 1992 to 1995, complainant also performed
collateral EEO Counselor duties and testified that she attended EEO
Counselor training with the selectee (S1) (male, no disability).
Also in 1992, the Regional Director of EEO for the Southeast Region (RD)
(female) selected a female applicant for a GS-9 EEO specialist position,
even though a male was listed on the certificate of qualified applicants.
In May, 1995, complainant was promoted to a GS-11 EEO Specialist position.
In February, 1997, there was a GS-12 EEO Specialist position in RD's
office. Complainant did not apply for the position. RD selected a woman
for the GS-12 EEO specialist position. In March, 1997, RD advertised
another EEO Specialist position at the 9/11/12 level. On April 18,
1997, the servicing personnelist (SP) (female) (no disability) issued
three promotion certificates (one at GS-9 level, one at the GS-11 level
and one at the GS-12 level). There were two names listed at the GS-12
level (complainant being one of them), two names listed at the GS-11
level and nine names listed at the GS-9 level.
A ranking panel was compiled of one woman and two men. (R1, R2 and R3).
The panelists interviewed seven applicants using the same questions
for each interview. The panelists kept interview notes which were
contained in the investigative report. According to R1, complainant came
across �somewhat aggressive.� R2 indicated that complainant �appeared
assertive, potentially overly aggressive.� R3 noted that complainant
was �opinionated.�
The panel gave numerical scores from one to five, with one being the best.
The selectee (S1) (male, no disability) received the best score which
was a 4.3. Complainant received a score of 7.3, which rated her fourth
of seven interviewees. According to RD, who sat in on the interviews
as a non-voting participant, after the panelist calculated the scores
of the interviewees and S1 was rated the highest, she selected him.
Complainant had a college degree reflected on her application.
S1's application reflects a couple of years of college and no degree;
although R1 noted in her interview notes that S1 had a college degree.
Complainant was in an EEO Specialist position which she held since 1995.
S1 was a Management Assistant in the Regional EEO office. Complainant
had been rated distinguished in her last prior appraisal (i.e., 4 out of
5 points). S1 received a fully successful on his last appraisal (i.e.,
3 out of 5 points).
According to complainant, she had to consistently interject throughout
the interview her expertise and experience in EEO, to make the panel
knowledgeable of her qualifications and assets. She indicated during
her interview that her weight did not affect her job performance.
R1, R2 and R3 testified that complainant had been aggressive and/or angry
during her interview, which was confirmed by their interview notes.
All three panelist and RD testified that complainant's weight and sex
had no role in their decision.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination since she did not show that her shortness
of breath or her problems with walking or being unable to sit for long
times were substantial impairments.
The AJ concluded that complainant established a prima facie case of
gender discrimination because the selectee, not in her protected class,
was selected for the EEO Specialist position.
The AJ further concluded that assuming complainant established a prima
facie case of disability discrimination along with gender discrimination,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. The AJ found that all panelists explained that complainant's
weight and gender were not factors in their ranking. In addition,
the panelists explained that they selected the best qualified applicant.
The AJ found the panelists' testimony somewhat suspect, particularly
their rating of the selectee as number one in education whereas all of
the female applicants had more education. In addition, the AJ also
found suspect the panel's failure to rate complainant higher in job
related experience in that she was the only EEO Specialist on any of
the registers. However, the AJ found insufficient evidence to infer
that complainant's gender or weight were factors, as opposed to the
fact that S1 was a Regional employee and all of the panel members,
as well as the selecting official, knew him personally. RD was his
first-line supervisor. The panelists all testified that they knew S1,
and they all likewise testified that they did not know complainant.
In addition, the AJ noted that while the comments of the panelist as
to complainant being aggressive and/or assertive and/or opinionated may
reflect some gender bias, as set forth in the Price Waterhouse v. Hopkins,
490 U.S. 248 (1989) decision, complainant, did at times appear to be
somewhat defensive during cross-examination, and to some extent her
cross-examination reflected some corroboration of the comments made
by the panel members. However, the AJ noted that despite all of the
negative comments made by the panel members, two rated her third and one
rated her fourth among the applicants. The AJ also found important the
fact that RD had made at least two prior selections of EEO specialists,
one in 1992 and one in 1997. Both times female applicants were selected.
Thus, the AJ found no history of selecting males over females.
While the AJ suggests that complainant appeared, at least on paper, to
have been better qualified than S1, he noted that it is not his function
to substitute his judgment for that of the panel members absent some
clear evidence of gender discrimination. While S1 was only a Management
Assistant, he was a Management Assistant in the EEO office. In addition,
the AJ noted that while S1 may have embellished his application in a
document presented to the panel, that paperwork reflects substantial
experience in EEO matters, which the panel apparently considered.
Accordingly, the AJ concluded that complainant has not proven, by a
preponderance of the evidence that the non-selection was due to disability
or gender discrimination.
The agency's final decision implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing,
focusing her arguments that she was substantially more qualified than S1.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Assuming, without deciding, that complainant had established that she
was disabled under the Rehabilitation Act, after a careful review of the
record, the Commission finds that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present sufficient evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's weight or gender. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 16, 2002
__________________
Date