05A20543
06-19-2002
Nilofer Pervez, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Nilofer Pervez v. Department of the Navy
05A20543
06-19-02
.
Nilofer Pervez,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05A20543
Appeal No. 01A14880
Agency No. 00-69224-001
DENIAL OF REQUEST FOR RECONSIDERATION
Nilofer Pervez (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Nilofer Pervez v. Department of the Navy, EEOC Appeal
No. 01A14880 (February 20, 2002). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
Complainant filed an EEO complaint claiming that she had been
discriminated against on the bases of sex (female), national origin
(Asian - Pakistani), age (DOB: 5/21/51) and reprisal (prior EEO activity)
when, on September 30, 1999, she was rated �ineligible� for consideration
for the position of Pharmacist at Naval Air Station Ingleside, Texas.
The complaint was accepted for investigation. After complainant was
issued the report of investigation, she requested a hearing before a
Commission Administrative Judge (AJ), however, the AJ sent the complaint
back to the agency for a FAD after the complainant failed to comply with
the AJ's orders. The agency issued a final agency decision.
In its July 18, 2001 decision, the agency found that complainant had not
established a prima facie case of reprisal discrimination because she
had not shown that the Personnel Specialist who rated her application
had any knowledge of her previous EEO activity. It assumed for the
purposes of analysis that she had met the prima facie cases for sex,
national origin and age. It found that the agency had offered legitimate,
non-discriminatory reasons for its actions which complainant had not
shown to be pretextual. The Personnel Specialist who rated complainant's
application testified that she was unaware of complainant's sex, age
or national origin, and that she rated complainant as �ineligible�
because her application did not contain a detailed description of her
job experience, with �from� and �to� dates. The agency concluded that
the complainant had not shown these reasons to be pretextual and it
concluded that complainant had failed to show discrimination.
The previous decision affirmed the agency's final agency decision.
The record did not contain evidence that would show that complainant's
application was rated ineligible because of her national origin, age,
sex or reprisal. On initial appeal, complainant offered no argument as
to why the FAD was incorrect.
On request for reconsideration, complainant argued that: the agency
had not complied with the order of the AJ; the FAD did not analyze
the sufficiency of her employment application; the FAD erroneously
stated that she had not provided an affidavit for the investigation;
the agency's witness provided a declaration which should not have been
relied upon; and the agency erroneously analyzed her complaint when it
did not consider whether she had established her prima facie cases,
but had assumed that she had. She argued that she had carried her
burden of proof and that a decision should have been made in her favor.
The agency requested that the initial decision be upheld.
In response to the arguments of complainant, we find for the following
reasons that she has not shown that a clearly erroneous interpretation
of fact or law was made when the agency's FAD was affirmed. We find
that the agency clearly carried out the intent of the AJ by issuing a
decision on the merits of her complaint. The agency was not required to
determine if complainant was truly eligible for the position, only whether
the rating of �ineligible� was determined in a discriminatory manner.
The statement in the FAD that complainant had not provided a statement
to the investigator was harmless error. The declaration of the agency's
witness was sufficient for the purposes of the investigation. Finally,
we find that the agency correctly analyzed complainant's complaint
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). While McDonnell Douglas
articulated the requirements of a prima facie case, under U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983), when
the agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. The agency correctly
utilized Aikens and looked at whether complainant had ultimately shown
that she had been discriminated against, and concluded that she had not.
We agreed with that analysis and affirmed.
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01A14880 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
_____06-19-02_____________
Date