Elizabeth Rollins, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, (Federal Highway Administration), Agency.

Equal Employment Opportunity CommissionOct 9, 2003
05A30986 (E.E.O.C. Oct. 9, 2003)

05A30986

10-09-2003

Elizabeth Rollins, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Highway Administration), Agency.


Elizabeth Rollins v. Department of Transportation

05A30986

October 9, 2003

.

Elizabeth Rollins,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

(Federal Highway Administration),

Agency.

Request No. 05A30986

Appeal No. 01A13855

Agency No. 2-96-2127

DENIAL OF REQUEST FOR RECONSIDERATION

The Department of Transportation (agency) timely initiated a request

to the Equal Employment Opportunity Commission (EEOC or Commission)

to reconsider the decision in Elizabeth Rollins v. Department of

Transportation, EEOC Appeal No. 01A13855 (May 23, 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).

In her underlying complaint, complainant alleged she was discriminated

against in violation of the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., on the basis of age

(D.O.B: April 29, 1936), when she was not promoted for any of seventeen

positions over a period of two years. In its final agency decision (FAD)

the agency dismissed eight of complainant's claims for untimeliness,

and six others for failure to contact an EEO counselor. The FAD found

that as to three of the remaining four claims, complainant failed to

show that the agency's legitimate, nondiscriminatory reason was mere

pretext for age discrimination. As to the final position, the FAD

found that although it could articulate no legitimate, nondiscriminatory

reason for complainant's nonselection, complainant nonetheless failed to

establish discrimination. On appeal, the Commission affirmed the FAD as

to the dismissals, and three of the four findings of no discrimination.

The Commission further found, however, that the agency's failure to

articulate a legitimate, nondiscriminatory reason as to complainant's

nonselection for the position designated by vacancy number 96-013EE

necessitated a finding of age discrimination.

In its request for reconsideration, the agency contends that the

Commission erred in finding that it had not articulated a legitimate,

nondiscriminatory reason for not selecting complainant for the position

at issue. The agency contends that its reports of investigation for this

case establish that complainant was not the most qualified individual for

the position. After a review of the agency'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. We find that the

record contains no evidence to support the agency's contentions, and the

FAD specifically stated that the agency could articulate no legitimate,

nondiscriminatory reason for complainant's non-selection. Therefore,

the decision in EEOC Appeal No. 01A13855 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.

ORDER (D0900)

The agency is ordered to take the following remedial action:

1. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall retroactively promote complainant to the position

designated by vacancy number 96-013EE<1> within the agency's office of

Motor Carrier, Information Analysis, Motor Carrier Division Washington,

D.C. facility. Complainant shall be given a minimum of fifteen (15) days

from receipt of the offer of placement within which to accept or decline

the offer. Failure to accept the offer within the time period set by the

agency will be considered a rejection of the offer, unless complainant

can show that circumstances beyond her control prevented a response

within the time limit. If this position is not vacant, the agency must

offer complainant placement in a substantially similar position.

2. Within sixty (60) calendar days of the date this decision becomes

final, the agency is directed to award complainant back pay, with

interest, for all wages and benefits, if applicable, between the date

she was not selected for vacancy number 96-013EE, and the date she is

promoted to such position or a substantially similar position, declines

the offer of promotion, or is otherwise unable to accept the promotion.

The agency shall determine the appropriate amount of back pay, interest,

and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501(c).

The complainant shall cooperate in the agency's efforts to compute

the amount of back pay and benefits due, and shall provide all relevant

information requested by the agency. If there is a dispute regarding the

exact amount of back pay and/or benefits, the agency shall issue a check

to the complainant for the undisputed amount within sixty (60) calendar

days of the date the agency determines the amount it believes to be due.

The complainant may petition for enforcement or clarification of the

amount in dispute. The petition for clarification or enforcement must

be filed with the Compliance Officer, at the address referenced in the

statement entitled "Implementation of the Commission's Decision."

3. The agency shall provide training to all the management officials

responsible for this matter in their duties and obligations under

the ADEA.

4. The agency is further directed to submit a report of compliance,

as provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Office of Motor Carrier, Information

Analysis, Motor Carrier Division Washington, D.C. facility copies of

the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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

October 9, 2003

__________________

Date

1 The title of this position is not reflected

in the record.