01a25048_r
01-09-2003
Ella B. McLendon, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.
Ella B. McLendon v. Environmental Protection Agency
01A25048
January 9, 2003
.
Ella B. McLendon,
Complainant,
v.
Christine Todd Whitman,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A25048
Agency No. 2000-001-R4
Hearing No. 110-A1-8358X-TGH
DECISION
The record indicates that complainant filed an appeal from the
agency's final action dated August 26, 2002, concerning her complaint
of unlawful employment discrimination. In her complaint, complainant,
a Secretary, GS-8, alleged that she was discriminated against based
on race (Black) and age (DOB: 5/15/50) when on August 25, 1999, she
was not selected for the position of Secretary, GS-0318-8/9, under
Vacancy Announcement No. MPP-99-737. The record indicates that at the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). The AJ, after a hearing, issued a
bench decision finding no discrimination, which was implemented by the
agency in its final action.
After a review of the record, the Commission finds that complainant
established a prima facie case of discrimination. However, the Commission
finds that the agency articulated legitimate, nondiscriminatory reasons
for its action. The Selecting Official testified that he based his
selection on qualifications in that both complainant and the Selectee
previously worked directly for him on a temporary basis and he was
more impressed with the quality of the performance of the Selectee
than complainant. Specifically, the Selecting Official felt that the
Selectee did better with respect to the preparation of travel packages,
that she utilized some new procedures that made life easier for him,
and that he felt her manner in dealing with the public and with people
within the agency was better than that of complainant.
The Commission finds that complainant failed to show that the agency's
reasons were pretext for discrimination. Complainant did not rebut the
agency's arguments that its action was nothing more than a business
decision without discriminatory motive. The Commission finds that
complainant failed to show, by a preponderance of the evidence, that
she was discriminated against based on race and age.
The agency's decision finding no discrimination is AFFIRMED.
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
January 9, 2003
__________________
Date