Wanda Horton, Complainant,v.Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 29, 2001
01a03965 (E.E.O.C. Mar. 29, 2001)

01a03965

03-29-2001

Wanda Horton, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.


Wanda Horton v. Department of the Navy

01A03965

03-29-01

.

Wanda Horton,

Complainant,

v.

Robert B. Pirie, Jr.,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A03965

Agency No. 97-65923-050

Hearing No. 140-98-8156X

DECISION

On May 12, 2000, Wanda Horton (hereinafter referred to as complainant)

filed a timely appeal from the May 4, 2000, final action of the Department

of the Navy (hereinafter referred to as the agency) concerning her

complaint of unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted

in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,

the agency's final action is AFFIRMED.

The issue presented in this appeal is whether the complainant has proven,

by a preponderance of the evidence, that the agency discriminated

against her on the basis of race (black) when she was not selected for

the position of Office Automation Assistant in July 1997.

Following an investigation, complainant requested a hearing before an

EEOC Administrative Judge (AJ). The AJ held a hearing and, on March 31,

2000, issued a decision finding no discrimination. The agency agreed,

and complainant filed this appeal.

At the time of the event herein, complainant was a Secretary (Office

Automation) at the agency's facility in Cherry Point, North Carolina.

Complainant applied for the position, and a review panel rated applicants

on their responses to interview questions and accuracy in editing.

The selectee (white) for the position ranked second, the top-ranked

applicant having been afforded another position not at issue. The agency,

through panel members,<1> stated that complainant was not selected because

she was not among the highest ranking applicants and because she made

more errors in editing than the selectee. The AJ found that, other

than complainant's contention that the selection process was "illegal

and unfair," she did not present any evidence to show that the process

was discriminatory or that she ranked higher or was more qualified than

the selectee.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an AJ will be upheld if supported by substantial evidence in the

record. Substantial evidence is defined as "such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion."

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). After a careful review of the record, the

Commission finds that the decision of the AJ accurately states the facts

and correctly applies the pertinent principles of law.

Complainant asserted that she had experience as a Secretary, that the

selecting official did not review the applications, and that she followed

the agency's style manual. None of these statements demonstrate that the

reasons articulated by the agency for its selection decision were based

on prohibited considerations of race. Accordingly, it is the decision

of the Commission to AFFIRM the agency's final action in this matter.

CONCLUSION

Accordingly, the agency's final action was proper and is AFFIRMED.

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 (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

__03-29-01________________

Date

1The panel consisted of two persons presently in the position at issue

and one manager.