01986951
03-23-2000
Vathsala Srinivasan, Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission,) Agency.
Vathsala Srinivasan v. Equal Employment Opportunity Commission
01986951
March 23, 2000
Vathsala Srinivasan, )
Complainant, )
)
v. ) Appeal No. 01986951
) Agency No. 09400029LA
Ida L. Castro, )
Chairwoman, )
Equal Employment Opportunity Commission,)
Agency. )
________________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning her equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.<1>
ISSUE PRESENTED
The issue presented is whether complainant has established that the
agency discriminated against her on the bases of color (brown), religion
(Hindu), sex (female), national origin (Asian/East Indian), age (42),
and physical disability (need for water after talking for long periods)
when she was not selected for the position of Investigator, GS-1810-5/7,
at the agency's Los Angeles District Office.
BACKGROUND
In a complaint dated December 22, 1993, complainant, then an applicant
for Federal employment, alleged that the agency discriminated against
her as delineated in the above-entitled statement "Issue Presented,"
based on both the disparate treatment and disparate impact theories
of discrimination. The agency conducted an investigation, provided
complainant with a copy of the investigative report, and advised
complainant of her right to request either a hearing before an
Administrative Judge<2> (AJ) or an immediate final agency decision (FAD).
Complainant requested a hearing. Subsequently, both parties filed
motions for summary judgment.<3> The AJ granted the agency's motion,
and thereafter issued a recommended decision (RD), without a hearing,
finding no discrimination.<4> On August 12, 1998, the agency adopted
the finding in the RD and issued a FAD finding no discrimination.
It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
Disparate Treatment Claim
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that complainant herein must
present a body of evidence such that, were it not rebutted, the trier of
fact could conclude that unlawful discrimination did occur. The burden
then shifts to the agency to articulate a legitimate, non-discriminatory
explanation for its action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). In this regard, the agency need only produce
evidence sufficient "to allow the trier of fact rationally to conclude"
that the agency's action was not based on unlawful discrimination. Id. at
257. Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, "going forward," may shift, the burden of persuasion,
by a preponderance of the evidence, remains at all times on complainant.
Burdine, 450 U.S. at 256. This analysis, developed in the context of
Title VII proceedings, also applies to cases arising under the ADEA.
Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981).
Complainant has established a prima facie case of discrimination as to
color, religion, sex, national origin, and age. The record reflects
that the four selectees for Investigator positions were a white female,
age 24; a black male, age 39; a white female, age 25; and a black female,
age 32, none of whom were of Asian/East Indian national origin.
Courts have adopted and applied the Title VII burdens of proof, see supra,
to disability discrimination. See Norcross v. Sneed, 755 F.2d 113 (8th
Cir. 1985); Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).
In order to establish a prima facie case of disability discrimination,
complainant must prove, by a preponderance of the evidence, that she was
treated differently than individuals not within her protected group,
or that the agency failed to make a needed reasonable accommodation,
resulting in adverse treatment of complainant. See Sisson v. Helms,
751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846 (1985).
As a threshold matter, appellant must establish that she is a "qualified
individual with disability" within the meaning of the Rehabilitation Act.
The Act's implementing regulation defines "individual with disability"
as a person who has, has a record of, or is regarded as having a physical
or mental impairment which substantially limits one or more of that
person's major life activities: self-care, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. ��1630.2(g)-(j).<5> The regulation defines a "qualified
individual with disability" as a person "who, with or without reasonable
accommodation, can perform the essential functions of the position in
question ...." 29 C.F.R. �1630.2(m).
Complainant has not established that she is an "individual with
disability" within the meaning of the Rehabilitation Act. She identified
her putative disability as "need for water after talking long periods."
While speaking is considered a major life activity, see supra, there is
no evidence from which to conclude that the need to drink water after
talking for long periods constitutes a substantial impairment of her
ability to speak. Because complainant has not established that she is an
"individual with disability" within the meaning of the Rehabilitation
Act, she is not entitled to the Act's protection, and the Commission
will not consider this portion of her complaint any further.
The burden now shifts to the agency to proffer a legitimate,
non-discriminatory explanation for its actions. The agency explained
that complainant was determined to possess the minimum qualifications
for the position, based upon complainant's education, background,
and "Administrative Careers with America" (ACWA) examination score.
Candidates were divided into a competitive list and a non-competitive
list, which included "Outstanding Scholar" candidates who had graduated
in the top 10 percent of his or her college graduating class or had a
3.5 or better grade-point average on a 4.0 scale. The agency noted
that complainant never submitted the necessary documentation to be
considered as an Outstanding Scholar. Her name ultimately was placed
on the competitive list.
A four-member panel, consisting of a Supervisory Investigator and
three Senior Investigators, interviewed 8 candidates from each list,
including complainant. All candidates were asked the same set of
questions, which were intended to assess the candidate's people skills,
knowledge, and experience to conduct effective investigations of EEO
charges. The summary rating of complainant's interview prepared by the
panelists was: "[B]elow average interview, no practical experience in
EEO laws other than personal research, excellent work history but little
relevance to EEOC." By contrast, of the selectees, one was selected
non-competitively as an Outstanding Scholar; and the others had either
prior investigative experience or experience with EEO law, or both.
This explanation is sufficient to meet the agency's burden.
At this point, the burden shifts back to complainant to establish
that the agency's explanation is a mere pretext for discrimination.
The administrative judge found that complainant had adduced no evidence
in support of a finding of pretext, only conclusory statements regarding
her belief that she had been discriminated against, which led him to
grant the agency's motion for summary judgment.
Complainant's main argument in support of pretext is that she "did very
well in the interview," noting that no adverse comments appear in the
interview notes. Complainant, however, overlooks the summary of her
interview included with those notes which, as set forth above, states,
"[B]elow average interview, no practical experience in EEO laws other than
personal research, excellent work history but little relevance to EEOC."
A second argument raised by complainant is that she should have been
considered under the Outstanding Scholar Program. The record, however,
reflects that complainant did not submit the necessary documentation for
such consideration.<6> The Commission finds that complainant has not
submitted evidence bearing on pretext sufficient to create a triable
issue of material fact, and that complainant has not established her
claim of disparate treatment discrimination.
Disparate Impact Theory
In order to establish disparate impact discrimination, complainant must
show that a facially neutral practice of the agency has a disproportionate
effect on a protected group of which she is a member. See, e.g.,
Stocker v. Dept. of the Interior, EEOC Petition No. 03970086 (May 7,
1998). In order to show that a challenged practice disproportionately
impacts members of a protected group, complainant must: (1) identify
the specific practice or practices being challenged; (2) show relevant
statistical disparities; and (3) show that the disparities are related
to the challenged practice. Id.
Complainant alleged that during the four years preceding October
31, 1995,<7> the agency's Los Angeles District Office hired several
candidates for the position of Investigator, none of whom were East
Indian and "a disproportionate higher number of blacks for the position."
The record reflects that during that time period, the agency's Los
Angeles District Office hired nine GS-7 Investigators: 3 white, 3
black, 1 Native American, 1 Asian/Pacific Islander, and 1 Hispanic.
As noted by the AJ, however, not only is the sample presented so
small as to be of little probative value, but complainant presented
no statistical evidence regarding the available qualified labor pool.
Further, complainant did not identify a facially neutral practice that
disparately affected members of her protected groups; for example,
an educational requirement for the position at issue. Accordingly,
her claim of disparate impact discrimination is not established.
The Commission notes that on appeal complainant has challenged the
qualifications and the fairness of the Administrative Judge assigned to
her case. First, the Commission notes that, contrary to complainant's
argument, Administrative Judges are not required to be members of the
Federal judiciary. Second, with regard to the allegation of bias,
substantial showing of personal bias on the part of the AJ is required
to obtain a ruling that the administrative hearing was unfair. Roberts
v. Morton, 549 F.2d 158, 164 (10th Cir. 1977); cert. denied sub nom.,
Roberts v. Andrus, 434 U.S. 834 (1977); Pendleton v. FDIC, EEOC Appeal
No. 01940271 (August 9, 1994).
Complainant argued that the AJ "had a mental block because of his dogged
belief that cases are won because of the attorneys who are behind the
cases and not because of the strength of the facts in those cases[.]"
Complainant cites in support of her argument a comment allegedly uttered
by the AJ during a telephonic conference, during which complainant
asserts the AJ "insisted" that she retain counsel, referring to a famous
case and asking complainant whether she thought the individual involved
in that case would have prevailed without the assistance of counsel.
Complainant also accuses the AJ of "fraud and deceit" in that "[R]ather
than evaluating the facts in the original record objectively, the AJ
had chosen to simply copy down the agency's representative's arguments
in his decision."
Even assuming that the AJ did, in fact, encourage complainant to retain
counsel, it does not of necessity follow that he was biased against her
because she did not. Neither the evidence of record nor complainant's
arguments produces a substantial showing of personal bias.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
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:
March 23, 2000
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1In the instant matter, the EEOC is both the appellee agency and the
appellate arbiter. The Commission's appellate function is separate from,
and independent of, those offices responsible for processing and resolving
in-house discrimination complaints. Hereinafter, the appellate arbiter
will be referred to as "the Commission," and "the agency" will refer
to the EEOC in its capacity as the appellee agency. Chairwoman Ida
L. Castro has recused herself from participation in this decision.
2Where a hearing is requested, a case ordinarily is assigned to an
EEOC AJ. However, when the EEOC is the respondent agency, the case is
assigned to an AJ not employed by the EEOC.
3During the pendency of the motions, complainant alleged that the agency
further discriminated against her in reprisal for the complaint at bar
by failing to consider her for other Investigator positions at the Los
Angeles District Office. The AJ addressed this matter in his decision,
noting that no Investigator positions were filled at the Los Angeles
District Office subsequent to complainant filing the instant complaint.
4At the time this case was heard, the Commission's regulations provided
that the decision of an AJ was "recommended." 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. In relevant part, the revised
regulations provide that the decision of an AJ is binding on both parties,
subject to appeal to the Commission. 64 Fed. Reg. 37,644, 37657 (1999),
to be codified at 29 C.F.R. �1614.109(i).
5The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by Federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.
6Such documentation does exist in the record, but was submitted by
complainant during the investigation, nearly two years after the
non-selection at issue.
7The significance of this date is not readily apparent.