01986220
05-03-2000
Wendy L. Sporn, Complainant, v. Davis J. Barram, Administrator, General Services Administration, Agency.
Wendy L. Sporn v. General Services Administration
01986220
May 3, 2000
Wendy L. Sporn, )
Complainant, )
) Appeal No. 01986220
v. ) Agency No. 97-R6-STF-WLS-27
Davis J. Barram, )
Administrator, )
General Services Administration, )
Agency. )
)
DECISION
The complainant timely initiated an appeal of a final agency decision
dated July 17, 1998, concerning her complaint of unlawful employment
discrimination on the basis of age (DOB September 25, 1946), 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 found out that the Management Intern position she applied
for under vacancy announcement # (VAN) 9761091 was canceled and filled
by applicants of VAN 9761081, all of whom were younger than she. The
appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission AFFIRMS the agency's final decision finding no discrimination.
The record reveals that during the relevant time, the complainant was
employed as a GS-6 Accounting Technician, at the agency's Kansas City,
Missouri facility. The complainant alleged that personnel informed
her that she could not apply under VAN 9761081 because all current GSA
employees must apply under VAN 9761091. She asserts that VAN 9761091 was
canceled and all the selectees under VAN 9761081 were not current GSA
employees and the oldest selectee was 31 years old. The record shows
that both VANs opened on May 5, 1997, and both closed on May 23, 1997.
The record also shows that the area of consideration for VAN 9761081 was
"Outstanding Scholars*" and contained the following statements:
* Applications for these intern positions are also being accepted from
current GSA employees and from employees eligible under the Interagency
Career Transition Assistance Program (ICTAP), in local commuting area.
Those employees should apply under and follow application procedures
described in GSA Vacancy Announcement 9761091.
A copy of VAN 9761091 reveals that the area of consideration was "GSA
Employees Region wide and Federal displaced employees eligible under ICTAP
in the local commuting area.*" and contained the following statements:
*Applications for these positions are also being accepted from candidates
eligible under the Outstanding Scholar program. Those applicants should
apply under and follow application procedures described in GSA Vacancy
Announcement 9761081.
Believing she was a victim of discrimination, the complainant sought EEO
counseling and, subsequently, filed a complaint on September 15, 1997.
At the conclusion of the investigation, the complainant requested that
the agency issue a final decision.
The agency concluded that the complainant failed to establish a prima
facie case of age discrimination because she presented no evidence
that similarly situated individuals not in her protected classes were
treated differently under similar circumstances. Nonetheless, the
agency completed a full analysis of the complainant's complaint of age
discrimination and found that management had articulated legitimate,
nondiscriminatory reasons for its selections and that the complainant
failed to show that those reasons were merely pretextual.
On appeal, the complainant contends that the agency only qualified and
interviewed younger applicants from outside GSA, even though she was
"just as qualified as any of the people hired." The agency requests that
we affirm its final decision of no discrimination.
To prevail in a claim of age discrimination, the complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under the ADEA, however, the complainant's ultimate burden is to
establish that her age was a determining factor in her nonselection for
a Management Intern position. Fodale v. DHHS, EEOC Request No. 05960344
(October 16, 1998). The complainant must initially establish a prima
facie case by presenting evidence which, if unrebutted, would support
an inference that the agency's actions resulted from discrimination. Id.
The complainant may establish a prima facie case of age discrimination
with respect to her nonselection by showing that she is at least 40
years old, that she applied for a position for which she was qualified,
and that she was not selected. Id. It is not always necessary for the
complainant to show that a comparative employee outside of her protected
age group was treated differently. Id. In this case, the complainant
established that she was 51 years old when she applied under VAN 9761091,
that she was qualified for the position and that she was not selected.
Therefore, the complainant has established a prima facie case of age
discrimination.
The agency must now articulate a legitimate and nondiscriminatory reason
for not selecting the complainant for a Management Intern position which
rebuts the presumption of age discrimination created by the prima facie
case. Id. The Director Human Resources & Management Services Division
who was the Supervisor of Labor Relations and Staffing function of the
Division (SLR) at the time the selections for these VANs were made,
stated that for two years it was under a hiring freeze. Additionally,
he asserted that under the Management Intern program, selections would not
count against the Regional Employment ceiling, which provided management
an opportunity to recruit and select new employees.
The SLR further stated that the agency received enough applicants
under VAN 9761081 to fill all of the vacancies and VAN 9761091 was
therefore canceled. He further stated that if they were unable to
fill all the positions from VAN 9761081 they would have moved to the
pool of applicants from VAN 9761091. The SLR asserted that he did not
know the complainant's age. Additionally, the record contains a copy
of the agency's regulation EPA 9335.1, which states that management
may consider applicants concurrently or consecutively from any or
all recruitment sources. The recruitment source for VAN 9761081 was
"Outstanding Scholars" and the source for VAN 9761091 was "GSA Employees
Regionwide and Federal displaced employees eligible under ICTAP in the
local commuting area." Moreover, both VANs opened and closed on the
same day. We find that management's consideration of the applicants
consecutively from both recruitment sources was permissible.
The complainant now has the burden of establishing that the agency's
articulated explanation was a pretext for discrimination. Fodale,
EEOC Request No. 05960344. She must present enough evidence to show
that it is more likely than not that age discrimination was the real
reason the SLR selected all of the selectees from VAN 9761081. Id.
The complainant alleged that the SLR purposely canceled VAN 9761091
because he did not want any current GSA employees selected for these
positions. She further alleged that the SLR did this because there were
far more current GSA employees over 40 years old than under twenty-five
years old. We note the record shows that there were 14 applicants for VAN
9761091, of which 8 were over the age of forty. The record also shows
that there were 12 applicants for VAN 9761081, but does not contain the
ages of those applicants.
The complainant does not dispute that the agency was under a hiring
freeze, nor that the Management Intern positions would not count against
the Regional Employment ceiling. The complainant can not establish the
existence of discriminatory animus merely by showing that the SLR's
decision to cancel VAN 9761091 after making all selections from VAN
9761081 was unsound from a business standpoint, unfair, or motivated by
arbitrariness or ill will. See Patterson v. Department of the Treasury,
EEOC Request No. 05950156 (May 9, 1996). We find that the complainant
failed to submit evidence to show that the agency canceled VAN 9761091
as a pretext to keep older current employees from attaining Management
Intern positions.
Therefore, after a careful review of the record, including the
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 decision of no discrimination.
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:
May 3, 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
1 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.