S. Beth J. Dirmeier v. Department of the Air Force
01A11166
May 23, 2002
.



S. Beth J. Dirmeier,
Complainant,

v.

Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 01A11166

Agency No. EDIM00004



DECISION

Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.  The appeal
is accepted pursuant to 29 C.F.R. § 1614.405.  For the following reasons,
the Commission AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was employed
as a Contract Specialist, GS-1102-07 at the agency's AAC/PKOIS, Eglin Air
Force Base, Florida facility (PKO).  Complainant sought EEO counseling
and subsequently filed a formal complaint on January 21, 2000, alleging:

 she was discriminated against on the basis of age (date of birth:
 July 2, 1951) when she was not selected for a Contract Specialist,
 GS-1102-09 position; and,

 she was subjected to reprisal for her current EEO activity, when on
 December 9, 1999, she was harassed with regard to her supervisory
 quarterly review.

At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. § 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of age discrimination, but failed to establish a prima facie
case of reprisal discrimination because her supervisor was unaware of her
EEO activity when he gave her the quarterly review.  Additionally, the
agency articulated legitimate, nondiscriminatory reasons for its action.
The presiding Selection Panel Chairman (SPC) stated that an integrated
assessment of the candidates' attributes was used to screen candidates.
A three person selection panel was responsible for evaluating the merits
of each candidate.  The factors that were considered were: appraisal
ratings, current and past supervisors' input, interview score, experience,
education and training.  The panel gave most importance to prior
appraisals, then supervisors' input, and on down in descending order.
The panel unanimously decided that the selectee was the best candidate.
Complainant's performance appraisals and interview scores were much lower
than those of the selectee, as well as several other candidates who were
considered.  After evaluating complainant's arguments, the FAD concluded
that complainant did not offer any evidence beyond her bare assertions
to establish that management's articulated reasons were pretextual.

On appeal, complainant contends that “[w]ithout objective standards to
be measured, the appraisal system in the form of a position workplan
is a pretext to mask discrimination.”  Additionally, complainant argues
that the panel's failure to use the numeric values of the ratings further
serves this discriminatory practice.  The agency requests that we affirm
its FAD.

As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a).  Under the ADEA, it is "unlawful for an employer
... to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's age." 29 U.S.C. § 623(a)(1).  When a complainant
alleges that he or she has been disparately treated by the employing
agency as a result of unlawful age discrimination, "liability depends
on whether the protected trait (under the ADEA, age) actually motivated
the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993)). "That is, [complainant's] age must have actually played a
role in the employer's decisionmaking process and had a determinative
influence on the outcome." Id.

Disparate Treatment

To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination.  Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct.  See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997).  To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination.  Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993);  Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);  Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Assuming arguendo, that complainant established a prima facie case of
discrimination on the alleged bases, we turn to the agency to articulate
legitimate, nondiscriminatory reasons for its actions.  The SPC explained
that complainant was not selected because she was not deemed to be the
best qualified, by the three-person panel.  See Record of Investigation
(ROI), p. 140-1.  Overall, complainant was ranked eighth out of the
twelve candidates.  SPC stated that although complainant had more
experience than the selectee, this did not overcome the other factors to
make her the best candidate.  Id.  SPC additionally noted that during the
debrief, complainant asked a number of questions that could, or should,
not be answered (e.g. each candidate's scores, ranking, or age), which
may have been why she found the answers unsatisfying.  Id.

In attempting to establish pretext, complainant's principle argument
is that management is creating a sub-class of older employees by
restricting training, subjectively rating appraisals, and denying
rotational or promotional opportunities outside PKO.  However, she
offers no probative evidence in support of this assertion and we are
not persuaded by a preponderance of the evidence, that complainant's
age was the determinative factor in the agency's decisionmaking process.

We note that the agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing
authority absent evidence of unlawful motivation. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of
the Treasury, EEOC Request No. 05940906 (January 16, 1997).  Complainant
may be able to establish pretext with a showing that her qualifications
were plainly superior to those of the selectee. Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981).  We find that complainant has not
made such a showing of “plainly superior” qualifications.

It is the decision of the Commission that complainant has failed
to establish, by a preponderance of the evidence, that the agency's
articulated reasons are pretextual.

Harassment

It is well-settled that harassment based on an individual's prior EEO
activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477
U.S. 57 (1986).  In order to establish a claim of harassment under those
bases, complainant must show that: (1) she belongs to the statutorily
protected classes; (2) she was subjected to unwelcome conduct related
to her membership in those classes; (3) the harassment complained of
was based on her prior EEO activity; (4) the harassment had the purpose
or effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See Henson
v. City of Dundee , 682 F.2d 897 (11th Cir. 1982).  The harasser's conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).  In the instant
case, complainant contends that she was subjected to a hostile work
environment and retaliatory harassment because of her prior EEO activity.
SPC stated, as to the quarterly review, that he had been trying to set
up a meeting with complainant for over a week, in order to go over her
deteriorating performance and training, but had to delay it because of
other matters.  Id.  He stated that the fact that the meeting actually
occurred after complainant filed her pre-complaint was a coincidence; he
did not know she had done it when they finally met.  Id.  Additionally,
the changes in complainant's workload had nothing to do with her complaint
and were not intended to limit her recognition or advancement.  Id.
We find that complainant has failed to establish criteria (3) and (4).

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 FAD.


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

May 23, 2002
__________________
Date



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