05A20249
04-25-2002
Jane A. Kipp, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Jane A. Kipp v. Department of Agriculture
05A20249
04-25-02
.
Jane A. Kipp,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A20249
Appeal No. 01A13239
Agency No. 990957
Hearing No. 320-A0-8253X
DENIAL OF REQUEST FOR RECONSIDERATION
Jane A. Kipp (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Jane A. Kipp v. Department of Agriculture, EEOC Appeal
No. 01A13239 (December 6, 2001). 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).
Complainant filed an EEO complaint claiming that she had been
discriminated against on the basis of sex (female) when, on March 23,
1999, she was not selected for the position of Architect, GS-808-13,
(the Position) for which she had applied. After the complaint was
investigated and complainant was issued the report of investigation,
she requested a hearing before a Commission Administrative Judge (AJ).
The AJ concluded that the case was appropriate for a decision without
a hearing, and issued a decision finding that complainant had not been
discriminated against.
In his January 9, 2001 summary judgment decision, the AJ found
that complainant had not established a prima facie case of sex or
retaliation<1> discrimination. He found that complainant had not shown
that she was qualified for the Position. At the time of her application
for the Position, complainant held the position of Architect, GS-808-11.
The vacancy announcement for the Position specified that to qualify,
an applicant must have one year of specialized experience equivalent
to the next lower grade in the Federal service. Complainant had never
held a GS-12 position. The AJ then found that the agency had provided a
legitimate, non-discriminatory reason for its action, that complainant
was not qualified for the Position. The AJ found that complainant's
pretext arguments did not show that the agency's reason was not the real
reason for its action or that the agency was motivated by discrimination.
Complainant had argued that she was qualified for the Position by virtue
of work she had performed which she claimed was at the GS-12 level.
She also claimed that she had previously unfairly been denied a promotion
to the GS-12 level (about which she had filed an EEO complaint), and
that she would have had the requisite experience had she received that
promotion. The AJ ultimately concluded that complainant had failed to
meet her burden of proving discrimination. The agency issued a final
action implementing the AJ's decision.
The previous decision affirmed the agency's decision to implement the
decision of the AJ. A review of the record revealed that there were
no issues of material fact in dispute. The complainant submitted an
argument on appeal which argued that the AJ had incorrectly analyzed her
case because he had included the basis of reprisal, that the agency's
investigation was inadequate, and that she was unfairly denied a hearing.
The record clearly showed that complainant had never held a GS-12 level
position, which was required for the Position, and which precluded her
from being considered qualified. Even had she performed some work at the
GS-12 level, she had not documented this in her application in order for
the Personnel Specialist to use it in her consideration of complainant's
application. Our review of the record showed that the investigation
performed was adequate, and that the witness who complainant wished to
have had interviewed would not have provided testimony sufficient to alter
the outcome of the AJ's decision. We also found that the AJ's inclusion
of reprisal as a basis for complainant's complaint was harmless error.
Complainant's request for reconsideration reiterated her argument that the
investigation was inadequate. We find, however, that complainant has not
shown that the previous decision, or the AJ, committed a clearly erroneous
interpretation of material law or fact with respect to her complaint.
After a review of complainant'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. The decision in EEOC
Appeal No. 01A13239 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
____04-25-02______________
Date
1 Although complainant's complaint was filed solely on the basis of
sex, the agency accepted the complaint for investigation on the bases
of sex and reprisal. Complainant notified the agency of its error,
and the investigator confined his investigation to the basis of sex.
The EEO Counselor's report references a discussion complainant had
with the Counselor regarding possible retaliation, although complainant
declined to file on that basis. Presumably, that is the source of the
agency's and the AJ's error.