01975420
02-02-1999
______________________________ Elizabeth B. Tinnin, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Elizabeth B. Tinnin v. Department of the Navy
01975420
February 2, 1999
______________________________
Elizabeth B. Tinnin, )
Appellant, )
)
v. )
) Appeal No. 01975420
Richard J. Danzig, ) Agency No. DON-95-00151-037
Secretary, ) Hearing No. 170-96-8267X
Department of the Navy, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission on June 27, 1997,
from a final agency decision ("FAD") dated May 27, 1997, concerning her
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. In her
complaint, appellant alleged that her supervisor discriminated against her
on the bases of race (Black), and sex (female), when she was not selected
for the position of Personnel Staffing Specialist, GS-212-12. This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
Appellant had worked for the agency at the Philadelphia Navy Shipyard
("Shipyard") for 35 years prior to her retirement in 1986. At the
time of her retirement, she served as a Supervisory Personnel Staffing
Specialist. In April of 1993, while visiting the Shipyard, appellant
had a conversation with the Assistant Personnel Officer ("APO") where she
inquired about the possibility of her returning to duty to assist in the
closing of the Shipyard. At the end of April 1993, appellant prepared an
updated SF-171 with a cover letter, and sent the information to the APO
through a former co-worker. The APO stated that he never received the
SF-171. However, the Assistant Head of Personnel Operations stated that
she received the SF-171 and referred it to her supervisor, the Director
of Human Resources Office ("Director"). Appellant stated that, after
submitting her SF-171, she had frequent conversations with supervisory
officials in the personnel office concerning her possible reinstatement.
In August or September of 1993, the agency placed an announcement
through the Federal Executive Board seeking a re-employable retired
federal employee for a temporary appointment to assist in the closing
of the Shipyard. The Director stated that he received approximately
ten applications in response to the announcement. After reviewing the
applications, the Director recommended one applicant to the APO, who
served as the Selecting Official. The APO interviewed and subsequently
hired the recommended individual ("Selectee").
Believing that she was the victim of discrimination, appellant sought EEO
counseling and, thereafter, filed a formal EEO complaint on February 25,
1995. The agency accepted the complaint for investigation and complied
with all of our procedural and regulatory prerequisites. Subsequently,
appellant requested a hearing before an EEOC Administrative Judge
("AJ"). Following a hearing, the AJ issued a Recommended Decision
("RD"), on March 5, 1997, finding no discrimination. In her RD, the
AJ concluded that appellant failed to establish a prima facie case of
discrimination based on race or sex, in that she failed to show that
she applied for the position at issue or that her application, which
preceded the announcement, warranted consideration once the vacancy
arose. The AJ found that the fact that both the APO and Director had
knowledge of appellant's interest in re-employment, without more, was
insufficient to demonstrate that she applied and was considered for the
disputed position. The AJ further found that appellant had not shown that
consideration was given to any pre-announcement application in this case.
The agency's FAD adopted the AJ's RD. On appeal, appellant contends that
the AJ erred in finding that she had not established a prima facie case.
Appellant also contends the AJ erred by refusing to permit testimony
regarding EEO complaints involving other employees.<1> The agency asserts
that the AJ's findings were correct and requests that we affirm its FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We note that nothing proffered by
appellant on appeal differs significantly from the arguments presented
at the hearing and given full consideration by the AJ. Therefore, the
Commission discerns no basis upon which to overturn the AJ's finding of
no discrimination in this matter. In this regard, the AJ made specific
credibility findings which are entitled to deference due to the AJ's
first-hand knowledge, through personal observation, of the demeanor and
conduct of the witnesses. See Esquer v. United States Postal Service,
EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of
the Treasury, EEOC Request No. 05900589 (July 26, 1990). Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which adopted the AJ's finding of no
sex or reprisal discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
February 2, 1999 _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The AJ ruled that the testimony was irrelevant.