05A31092
09-29-2003
Barbara A. Rucker-Wittnik, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Barbara A. Rucker-Wittnik v. Department of the Army
05A31092
09-29-03
.
Barbara A. Rucker-Wittnik,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Request No. 05A31092
Appeal No. 01A32699
Agency No. AFDEFO0201C0020
Hearing No. 110-A2-8535X
DENIAL OF REQUEST FOR RECONSIDERATION
On July 29, 2003, Barbara A. Rucker-Wittnik (complainant) timely
initiated a request to the Equal Employment Opportunity Commission (EEOC
or Commission) to reconsider the decision in Barbara A. Rucker-Wittnik
v. Department of the Army, EEOC Appeal No. 01A32699 (June 26, 2003).
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 basis of race (African-American) when,
in December 2001, she was not selected for the position of Supervisory
Auditor, GS-511-14. After the complaint was investigated and complainant
was issued a report of investigation, she requested a hearing before
an EEOC Administrative Judge (AJ). After the hearing, the AJ issued a
bench decision finding no discrimination. The agency adopted the AJ's
decision as its final action.
In her December 16, 2002 decision, the AJ found that complainant
established a prima facie case of race discrimination in that she
applied for the position, was qualified, was not selected and a person
not of her race (white) was selected. The AJ found that the agency had
articulated a legitimate, non-discriminatory reason for its action,
i.e., complainant was non-selected because the selectee was better
qualified and scored much higher when the applications were rated.
The AJ concluded that complainant had not shown the agency's reasons to
be a pretext for discrimination. The previous decision affirmed the
agency's finding of no discrimination.
In her request for reconsideration, complainant disputed the hearing
testimony of the selecting official that he did not know that the selectee
was a White male because, prior to the day the selectee reported to work,
they had never met. According to complainant, the selectee told her
that he met the selecting official on several occasions before he was
selected for the position.
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. Furthermore, we find
no reason to reconsider the previous decision on our own motion.
Assuming that complainant was correct that the selecting official
knew the selectee before the selection decision was made, we find no
persuasive evidence that race played a role here. At the hearing,
complainant maintained that his non-selection was due to the selecting
official doing a favor for his friend. Evidence of preselection or
favoritism may act to discredit an agency's explanation for its selection,
however, preselection does not violate Title VII when it is based on the
qualifications of the selectee and not on some basis prohibited by Title
VII. Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).
The decision in EEOC Appeal No. 01A32699 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
___09-29-03_______________
Date