0120090621
04-16-2009
Fran Caesar, Complainant, v. Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.
Fran Caesar,
Complainant,
v.
Stephen L. Johnson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120090621
Agency No. 20070050R06
Hearing No. 450200800178X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the decision1 of an EEOC Administrative Judge (AJ) concerning
her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq,. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant alleged that the agency discriminated against
her on the bases of race (African American) and age (59 years at time
of incident) when:
1. On March 23, 2007, complainant was not selected for the
position of Public Affairs Specialist, GS-9, under Vacancy Announcement
FCIP-2007-3
The AJ found that complainant established a prima facie of discrimination
but that the agency articulated a legitimate, nondiscriminatory reason for
its action, and that complainant failed to establish that the agency's
articulated reason was a pretext for prohibited discrimination. The AJ
noted that the selecting official (SO: Caucasian, 45 years at time of
incident) testified that the selectee (S: Hispanic, 31 years at time of
incident) had more relevant experience than did complainant. The AJ
then found that complainant failed to show that she is clearly more
qualified than S. On appeal, complainant reiterates her allegations
of discrimination, while the agency requests that we uphold the AJ's
decision.
SO testified that the Public Affairs Specialist position required "someone
who has experience and skills relating to communication. Strong skills
in oral . . . and written communication . . ." Hearing Transcript,
pp. 45-6. A review of the record reveals that S had experience as an
Environmental Senior Planner and Environmental Planner with the agency and
her experience included some public speaking and public relations work.
See Report of Investigation (ROI), Exhibit F-13, p. 2. Complainant's
experience, on the other hand, was as a Management Assistant/Editor,
Editor/Computer Specialist, Teacher, and Administrative Assistant and did
not reveal that she possessed as much public communications experience
as did S. See ROI, Exhibit F-12 generally. We therefore find that the
AJ's finding that complainant failed to show that her qualifications are
demonstrably superior to those of S is supported by substantial evidence.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
April 16, 2009
__________________
Date
1 The record does not indicate that the agency issued a Final Order.
Under 29 C.F.R. � 1614.109(h)(i) if an agency does not issue a Final
Order within 40 days of the AJ's decision, the AJ's decision becomes
the agency's final action.
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0120090621
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090621