Elizabeth A. Rollins, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionFeb 9, 2001
01984534 (E.E.O.C. Feb. 9, 2001)

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.