05a20540
07-09-2002
Barbara J. Drabek, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Barbara J. Drabek v. Department of the Navy
05A20540
07-09-02
.
Barbara J. Drabek,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05A20540
Appeal No. 01996943
Agency No. 98-68322-003
DECISION ON REQUEST TO RECONSIDER
On March 19, 2002, Barbara J. Drabek (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider
the decision in Barbara J. Drabek v. Gordon R. England, Secretary,
Department of the Navy, EEOC Appeal No. 01996943 (February 13, 2002).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices or operation of the agency. 29 C.F.R. �
1614.405(b).
In her formal complaint dated January 5, 1998, complainant claimed
discrimination based on sex when she was not selected for the position
of Supervisory Program Analyst, GS-14, in January 1998 and September
1995.<1> Following an investigation, the agency found no discrimination
with regard to both selections. In both selection actions, a review
panel evaluated the candidates and forwarded its recommendations to the
selecting official. Both selectees ranked higher than the complainant.
With regard to the 1995 selection, the agency explained that the job
had become much more technical, and the selectee was more technically
skilled than complainant and had a higher level of education. As to the
January 1998 selection, although it was initially offered to a female,
she declined the appointment, and it was offered to the selectee, who
had ranked first among all candidates. The previous decision affirmed
the agency's decision.
In her request,<2> complainant challenged only the January 1998 selection,
contending that she ranked higher than the agency's decision stated,
and that she is entitled "by law" to the position. Request, p. 2.
In support, she relied on an undated and unsigned statement; however,
another document in the record dated November 4, 1997, just prior to the
second selection, and signed by the selection panel chair, stated that
the selectee rated 99 points, the original selectee had 97 points, and
complainant had 94 points. Further, complainant's argument that she is
entitled to the position by law is without merit. An agency may choose
among similarly qualified candidates, and complainant's qualifications are
not so superior to the selectees that pretext is shown. Bauer v. Bailar,
657 F.2d 1037, 1048 (10th Cir. 1981).
Complainant also argued that the lack of facts and analysis in the
prior decision deprived her of her right to meet the criteria for
reconsideration. In the prior decision, the Commission affirmed the
agency's final decision, and having agreed with the facts and analysis
of that decision, the Commission determined that it met the requirements
of the regulations. 29 C.F.R. � 1614.110(b).
CONCLUSION
Having reviewed complainant's request, we find that the request fails
to meet any of the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision of the
Commission in EEOC Appeal No. 01996943 (February 13, 2002) remains the
Commission's final decision. There is no further right of administrative
appeal from a decision of the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
_____07-09-02_____________
Date
1The second vacancy was caused by the resignation of the 1995 selectee.
2Complainant's argument that she should have been reassigned to the
position pursuant to the legislation governing base closings is not within
the Commission's jurisdiction and must be addressed to the proper forum.