05A21316
12-30-2002
Carol J. Witt, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Security Service), Agency.
Carol J. Witt v. Department of Defense
05A21316
12-30-02
.
Carol J. Witt,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Security Service),
Agency.
Request No. 05A21316
Appeal No. 01A02565
Agency No. DSS-98-028-DC-M
DENIAL OF REQUEST FOR RECONSIDERATION
Carol J. Witt (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Carol J. Witt v. Department of Defense, EEOC Appeal
No. 01A02565 (August 6, 2002). 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 bases of sex (female), and disability
(depression) when, on June 11, 1998, she was not selected for the
position of Investigator, GS-1810-12. The complaint was accepted for
investigation. After complainant was issued the report of investigation,
she requested a final agency decision without a hearing. The agency
issued a final agency decision on December 29, 1999.
In its decision, the agency found that complainant had established a
prima facie case of sex discrimination, and assumed for the purposes
of analysis that complainant had established a prima facie case of
disability discrimination. It then found that the agency had offered
legitimate, non-discriminatory reasons for its actions which the
complainant had not shown to be pretextual. The agency explained
that the two selecting officials looked at productivity, quality of
investigations and team participation, and that the selectee (male, no
disability) had the highest productivity of the three applicants for the
position, had done better in the interview and had gone to a leadership
conference which complainant had not nominated herself to attend.
The complainant claimed that, since she had been temporarily promoted to
GS-12 Supervisory Investigator position from June 1996 to February 1998,
she should have received the position. She also argued that because she
had been functioning as a supervisor, her productivity was lower due to
the administrative functions she was forced to spend time performing,
and the time it took to manage five employees. She also claimed that
one of the selecting officials had been treating her unfairly ever
since she had been hospitalized and on sick leave for three weeks for
depression and a nervous breakdown following a crisis in her personal
life in September 1997. The agency concluded that the complainant had
not shown their reasons to be pretextual, and it closed the complaint
with a finding of no discrimination.
The previous appeal decision affirmed the decision of the agency because
the agency correctly analyzed the case, and there was no evidence
submitted by complainant that would show that her non-selection
was motivated by her sex or claimed disability. In her request
for reconsideration, complainant requested additional time to submit
arguments which would support her contention that the previous decision
was incorrectly decided, but she did not explain how those arguments
would differ from what was already contained in her initial appeal's
statement. No additional arguments were received. The agency objected to
complainant's request for reconsideration and argued that the regulations
require that all supporting arguments be submitted with the request.
It also argued that the initial appeal was correctly decided.
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. The decision in EEOC
Appeal No. 01A02565 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
____12-30-02______________
Date