Barbara J. Drabek, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 9, 2002
05a20540 (E.E.O.C. Jul. 9, 2002)

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.