01984534
02-09-2001
Elizabeth A. Rollins, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Elizabeth A. Rollins v. Dept. of Transportation
01984534
February 9, 2001
.
Elizabeth A. Rollins,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01984534
Agency No. DOT-2-98-2127
DECISION
Complainant timely initiated an appeal of a Final Agency Decision (FAD)
concerning her complaint of discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
633a et seq. <1> Complainant claims discrimination on the basis of
age (61) when she was not promoted during the past two years, and most
recently not selected on July 19, 1996 for the position of Transportation
Specialist (GS-2101-13) under Vacancy Announcement NO. FHWA-96-079EE.
This appeal is accepted in accordance with 29 C.F.R. � 1614.405.
For the following reasons, the appeal is REMANDED for a supplemental
investigation.
The record reveals that during the relevant time, complainant was
employed as a Transportation Specialist (GS-2101-12) in the Motor Carrier
Analysis Division, Office of Motor Carrier Information Analysis, FHWA.
Complainant applied for twelve (12) vacancies for which she was not
selected (selectees' average age was 36). No selections were made for two
(2) announcements that were advertised and for which complainant applied.
Three (3) recruitment and selection files for two vacancies that
complainant applied for had expired and were subsequently destroyed.
Complainant also claims that she was discriminated against in a more
recent non-selection with respect to the position of Transportation
Specialist (GS-2101-13) under Vacancy Announcement No. FHWA-96-079EE.
Both the selecting official (SO) and the recommending official (RO)
contend that they selected the selectee (age 29) for the Transportation
Specialist position because he was the best qualified applicant by
virtue of his knowledge and experience in Intelligent Transportation
Systems/Commercial Vehicle Operations (ITS/CVO) and his outstanding work
directly in the ITS/CVO program since the program's inception.
Complainant asserts that the agency has not articulated legitimate,
non-discriminatory reasons for the non-selections of the seventeen (17)
(GS-13) vacancies advertised over a two-year period. The agency, in
its FAD, only gave reasons for its selection of Vacancy Announcement
No. FHWA-96-079EE. Complainant argues that the agency systematically
offered these positions to younger, less experienced counterparts.
In addition, complainant argues that the agency failed to thoroughly
investigate this issue, but rather focused exclusively on the most recent
non-selection.
With respect to the most recent non-selection, the complainant argues
that contrary to the agency's assertion, both she and the selectee
were involved in the ITS/CVO since its inception in 1991. At the
program's inception, complainant was a GS-11 and the selectee was a GS-7.
Complainant claims that she and the selectee participated in the ITS/CVO
definition, goals, objectives, policy development, budget assessments, and
contract justifications. Over the next four years, complainant asserts
that the selectee was afforded opportunities to work exclusively in the
ITS/CVO and complainant was not afforded such exclusive opportunities.
However, she continued to perform substantial work in the ITS/CVO program
along with work with other Office of Motor Carriers (OMC) programs.
We find that the investigative record is incomplete with respect
to complainant's claim that she applied and was non-selected for 17
vacancy announcements over a two year period. In addition, we find
the agency's explanation for the non-selection of Vacancy Announcement
No. FHWA-96-079EE is also inadequate, since the responsible management
officials fail to describe how the selectee's experience with the
ITS/CVO program was superior to complainant's and why such experience
was important to the selection decision. Accordingly, we conclude
that the record is presently inadequate to permit adjudication of the
complaint, and we therefore REMAND this matter to the agency to conduct
a supplemental investigation of the complainant in accordance with the
following ORDER.
ORDER
Within 60 days from the date this decision becomes final the agency shall
conduct a supplemental investigation which shall include the following
actions:
The agency shall obtain a supplemental affidavit from RO which addresses
the following: (a) With respect to Vacancy Announcement No. 96-079EE,
please explain in detail why you felt that the selectee's experience
with ITS/CVO was superior to complainant's experience in that area;
(b) With respect to the 17 vacancy announcements<2> which complainant
applied for during the years 1994 through 1996 please identify those
of which you were involved, and describe, in detail, your involvement;
(c) Of those vacancy announcements which you had some involvement,
please explain in detail why each selectee was chosen over complainant.
The agency shall obtain a supplemental affidavit from SO which addresses
the following information: (a) With respect to Vacancy Announcement
No. 96-079EE, please explain, in detail, why you felt that the selectee's
experience with ITS/CVO was superior to complainant's experience in that
area; and (b) With respect to each of the 17 vacancy announcements which
complainant applied for during the years 1994 through 1996, which you
had some involvement, please explain, in detail, why the selectee was
chosen over the complainant.
The agency shall obtain a rebuttal affidavit from complainant on all
issues addressed by SO and RO.
With respect to each vacancy announcement that complainant applied to
during the years 1994 through 1996, the agency shall provide the following
information: (a) a copy of each vacancy announcement; (b) a copy of the
position descriptions that coincided with each vacancy announcement;
(c) a copy of the rating guide for each vacancy announcement; (d) the
applications of complainant, the selectee, and all other applicants;
(e) the supervisory assessment or other written assessment of each
applicant, including but not limited to, formal and informal notes by
selecting official(s); and (f) the date of each selection.
After obtaining the information described herein above, the agency must
issue a new decision (with appeal rights to this Commission) concerning
whether complainant was discriminated against.
A copy of the new final decision must be sent to the Compliance Officer
as provided herein.
In accordance with Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), 9-23 (November 9, 1999), the
agency shall give priority to this case in order to comply with the time
frames contained in this Order. The Office of Federal Operations will
issue sanctions if it determines that an agency is not making reasonable
efforts to comply with a Commission order to investigate a complaint.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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 (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
February 9, 2001
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record does not identify these vacancy announcements by number.