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.