01a10166
06-19-2002
Linda K. Nowell, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Linda K. Nowell v. Department of the Army
01A10166
6/19/02
.
Linda K. Nowell,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A10166
Agency No. AFBGF09812I0590
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Management & Program Analyst at the agency's Rocky Mountain Arsenal,
Commerce City, Colorado facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on November 5, 1998, alleging that
she was discriminated against on the bases of sex (female) and reprisal
for prior EEO activity when:
(1) she was not selected for a promotion to an Accountant, GS-510-13
position; and
management did not rotate employees into the vacant Accountant position.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of sex discrimination or retaliation because she failed
to establish she could have been selected for the position since her name
was not on the referral list. As for complainant's claim that she was not
permitted to rotate into the subject Accountant position, the agency found
complainant failed to identify any similarly situated individuals outside
of her protected class who were permitted to rotate into the position.
On appeal, complainant requests a one year extension of time in which
to reply to the Report of Investigation. The agency requests that we
affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
agrees with the agency that complainant failed to present sufficient
evidence that more likely than not, the agency's articulated reasons for
its actions were a pretext for discrimination or retaliation. In reaching
this conclusion, we note that the preponderance of the evidence reveals
complainant was not selected for the subject position because she had
not recently updated her records in the Army's Civilian Career Evaluation
System (ACCES), and therefore, she was not on the referral list sent to
the Selecting Official. Although complainant argues that the selectee
was informed about the impending selection and advised to update his
records, we find no evidence to support her position. We further
find no other evidence that would establish management manipulated the
selection process in order to discriminate against complainant on the
basis of sex or retaliation. As for complainant's second allegation,
we find she presented insufficient evidence that she was denied the
opportunity to rotate into the subject position on the basis of her sex
or prior EEO activity. In that regard, we note complainant presents no
evidence of a discriminatory or retaliatory bias on management's part.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
6/19/02
Date