01A50261
12-22-2005
Karen F. Phelps, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Karen F. Phelps,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A50261
Agency No. JQ-03-018
Hearing No. 310-2004-00117X
DECISION
On October 8,2004, complainant filed an appeal from the agency's December
16, 2002 final order 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. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a).
Complainant, a Heavy Mobile Equipment Mechanic Inspector, WG-11, contacted
the EEO counselor and subsequently filed an EEO complaint alleging
discriminated on the basis of sex (female) when:
1. She was not selected for the position of Heavy Mobile Equipment
Mechanic Inspector Supervisor, WS-10, under Vacancy Announcement
DDC-02-2143;
2. She was not given an opportunity to volunteer for a job assignment
as an Inspector, WG-11, and missed overtime;
3. She was denied the opportunity to be temporarily promoted to a
Heavy Mobile Equipment Mechanic Inspector Supervisor, WS-10; and
4. She was denied the right to remain anonymous during the pre-
complaint processing.
The matter was investigated. Following the investigation, complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
conducted a hearing. Subsequently, she issued her decision finding no
discrimination. The AJ determined that complainant established her prima
facie case of discrimination as to claims (1) and (2). As to claim (3),
the AJ determined that complainant had not shown that she was similarly
situated as to her proffered comparators. Finally, as to claim (4), the AJ
noted that there was no evidence of discriminatory motive and noted that it
would have been obvious to management that complainant contacted the EEO
Office when the EEO Counselor contacted them as part of the informal
processing. The AJ then found that the agency provided legitimate,
nondiscriminatory reasons for its actions. Finally, the AJ determined that
complainant failed to show that the agency's reasons were pretext for
discrimination. Accordingly, the AJ concluded that complainant failed to
establish her claims of sex-based discrimination.
The agency implemented the AJ's findings and conclusions. Complainant
appealed arguing that she was disadvantaged during the hearing process.
Specifically, she believed that the agency's attorney set the pace at the
hearing. 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 (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.
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
December 22, 2005
__________________
Date