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.