01a44056
04-12-2005
Ada Chaney, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Ada Chaney v. Department of the Army
01A44056
April 12, 2005
.
Ada Chaney,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A44056
Agency No. AWGYFO0203C0030
Hearing No. 270-2003-09028X
DECISION
Complainant filed an appeal with this Commission concerning her
equal employment opportunity (EEO) 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
The record reveals that complainant, a Realty Specialist, GS 11, at the
agency's Real Estate Division, U.S. Army Corps of Engineers facility,
filed an EEO complaint on March 28, 2002, alleging that the agency
discriminated against her on the bases of race (African-American), age
(D.O.B. 10/25/36), and reprisal for prior EEO activity when she was not
selected for the position of Realty Specialist, GS-12.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision on August 7,
2003, finding no discrimination. Specifically, the AJ found that the
agency presented a legitimate, nondiscriminatory reason for its actions,
which complainant failed to rebut. The agency subsequently issued a
decision finding no discrimination.
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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We find that the agency has articulated a legitimate nondiscriminatory
reason for the nonselection. The applicants were rated based on the
following evaluation criteria: knowledge of NFS Acquisition; ability to
communicate orally; ability to communicate in writing; and leadership
skills. The Selecting Official testified that the position required
someone who would be able to train new employees and who possessed good
technical and interpersonal skills. The Selecting Official testified
that complainant worked independently and gave the impression that she
preferred to be left alone. The Selecting Official noted that complainant
did not trust other team members and the Selecting Official believed
that a team leader must trust members of the team and the members
must trust the team leader. Morever, the Selecting Official did not
believe that complainant had any significant training or experience
over the past eight years. The Selecting Official stated that the
Selectee has over eleven years of real estate experience, including
local sponsor acquisition, direct federal acquisition, and Uniform
Relocation Assistance experience. The Selecting Official stated that
the Selectee also had strong verbal and written communication skills
and demonstrated leadership abilities and initiative based on her past
performance, resume, and personal interview. Complainant failed to
rebut the agency's articulated legitimate, nondiscriminatory reasons for
its action. Complainant has failed to show that her qualifications for
the position were plainly superior to the Selectee's qualifications or
that the agency's action was motivated by discrimination.
Accordingly, 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
April 12, 2005
__________________
Date