01A14379
04-04-2002
Jacqueline L. Savukinas, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Jacqueline L. Savukinas v. Department of Agriculture
01A14379
April 4, 2002
.
Jacqueline L. Savukinas,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A14379
Agency No. CR980499
Hearing No. 100-AO-7206X
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning her complaint of unlawful 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 Equal Pay Act of 1963,
as amended, 29 U.S.C. � 206(d) et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges in her complaint that she
was discriminated against on the basis of her sex when (1) on January
28, 1998, the agency failed to approve her career ladder promotion
to the GS-13 grade level, and (2) she was paid at the GS-12 Economist
level while performing the same complexity and volume of work as a male
GS-13 Economist.
Following the agency's investigation into the complaint, complainant
requested a hearing before an Administrative Judge (AJ), who, after
determining that there was no genuine issue of material fact in the case,
entered a decision without a hearing. The AJ found that complainant had
failed to establish a prima facie case of sex discrimination for either
of her claims, basing this finding upon complainant's failure to provide
sufficient evidence to establish that she and a male GS-13 Economist
had performed at the GS-13 Economist level, and her failure to provide
either comparative or other evidence that would permit an inference that
her sex had any role in the agency's failure to promote her. The agency
adopted the AJ's decision in full in its FAD.
On appeal, complainant contends that she did in fact establish a
prima facie case of discrimination as to her nonpromotion claim, as
she identified a similarly-situated male employee who was promoted to
the GS-13 level, and that there was sufficient noncomparative evidence
presented from which one could infer that complainant's sex played a
role in her nonpromotion.<1> These are the same arguments complainant
presented to the AJ in opposition to the AJ's proposed entry of summary
judgment in favor of the agency, and we find the arguments no more
persuasive than did the AJ. In finding that complainant failed to
establish a prima facie case, the AJ noted that the comparison employee
identified by complainant was promoted under a different branch chief
than the branch chief from whom complainant had sought promotion, and
that the noncomparative evidence presented, even when viewed in a light
most favorable to complainant, did not provide sufficient support for
the inference that her sex played any role in the agency's failure
to promote complainant. While complainant contends on appeal that
the agency's argument regarding there being different branch chief
decisionmakers is refuted by evidence showing that promotion decisions
are made at the division, not branch, level, she has throughout the
EEO processing of her complaint contended that her branch chief was
the individual responsible for unlawfully discriminating against her.
Nor has she presented evidence that she sought promotion from anyone
other than her branch chief. Complainant also points to the affidavit
testimony of one agency official who stated that he believes that �gender
does play a role in promotional opportunities� in complainant's division,
as �[t]he mid-level positions (GS-13) are dominated by male employees.�
However, this individual provided no further explanation for his belief,
and also testified that he has no reason to believe that complainant was
discriminated against as she claimed. We are therefore unpersuaded by
these arguments.
After a careful review of the record, including arguments and evidence
not specifically discussed in this decision, we cannot conclude that
the evidence presented would permit a trier of fact to infer that
complainant's sex played any role in her nonpromotion, and accordingly
cannot conclude that she has met her burden of establishing a prima
facie case of sex discrimination. Therefore, it is the decision of
the Commission to AFFIRM the agency's FAD finding no discrimination,
as the Administrative Judge's issuance of a decision without a hearing
was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION�EQUAL PAY ACT (Y0900)
You are authorized under section 16(b) of the Fair Labor Standards Act
(29 U.S.C. � 216(b)) to file a civil action in a court of competent
jurisdiction within two years or, if the violation is willful, three years
of the date of the alleged violation of the Equal Pay Act regardless of
whether you have pursued any administrative complaint processing. The
filing of the 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
April 4, 2002
Date
1 Complainant has not challenged on appeal
the AJ's decision regarding her second claim, and our review of the
evidence reveals no reason to disturb the AJ's decision on this issue.