01976819
02-28-2000
Hannah T. Hoopengarner, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Hannah T. Hoopengarner v. Department of the Navy
01976819
February 28, 2000
Hannah T. Hoopengarner, )
Complainant, )
) Appeal No. 01976819
v. ) Agency No. DON 96-00146-001
) Hearing No. 140-96-8086X
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of reprisal (prior EEO activity),
and age (10/15/41), in violation of Title VII of the Civil Rights Act of
1964, 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.<1>
Complainant claims she was discriminated against when she was not selected
for the position of Supply Systems Analyst, GS-2003-05 KPP GS-2003-11.
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the agency's decision is AFFIRMED.
At the conclusion of the investigation, complainant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) Administrative
Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a
Recommended Decision (RD) without a hearing, finding no discrimination.
The agency's FAD adopted the AJ's finding of no discrimination. It is
from this decision that complainant now appeals.
The record reveals that during the relevant time, complainant was
employed as a Supply Technician, at the agency's Supply Directorate,
Fleet & Industrial Supply Center, Marine Corps Air Station, Cherry Point,
North Carolina.
The AJ concluded that complainant established a prima facie case of
age discrimination because the selectee, who was 40 years of age, was
significantly younger than complainant so as to support an inference
of discrimination. Also, the AJ determined that complainant failed to
establish a prima facie case of reprisal.
Considering that complainant established a prima facie case of age
discrimination, and assuming, arguendo, complainant established a prima
facie case of reprisal, the AJ concluded that the agency articulated
legitimate nondiscriminatory reasons for not selecting complainant.
The selectee was chosen because she had the highest overall cumulative
score. The AJ found that the selection committee gave the selectee a
higher rating than complainant because the selectee gave better responses
to the interview questions, and she was more competent.
The AJ noted that the agency was more interested in a candidate's
potential rather than past experiences because the position required
on-the-job training. Therefore, the AJ determined that whether
complainant had more experience than the selectee was irrelevant.
Furthermore, the AJ noted that the selection committee rated complainant
fifth, and he was not recommended as one of the top three candidates for
selection. The AJ concluded that if the selectee had not been chosen,
complainant still did not receive a high enough rating from the selection
panel to be considered for selection.
The AJ determined that complainant failed to establish that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
Complainant did not provide any evidence that she was better qualified
for the position than the selectee. Additionally, the AJ found that
complainant failed to show that the position did not require on-the-job
training, and that past experience was required for the position.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that complainant failed to
present evidence that any of the agency's actions were in retaliation
for complainant's prior EEO activity or were motivated by discriminatory
animus toward complainant's age. We discern no basis to disturb the AJ's
findings of no discrimination which were based on a detailed assessment
of the record.
Therefore, after a careful review of the record, complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all Federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.