01975834
05-20-1999
Maria L. Quevedo, Appellant, v. William S. Cohen, Secretary, Department of Defense (Army & Air Force Exchange), Agency.
Maria L. Quevedo v. Department of Defense
01975834
May 20, 1999
Maria L. Quevedo, )
Appellant, )
) Appeal No. 01975834
v. ) Agency No. 96-044
) Hearing No. 100-96-7873
William S. Cohen, )
Secretary, )
Department of Defense )
(Army & Air Force Exchange), )
Agency. )
)
)
DECISION
Appellant 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 sex (female), national origin
(Bolivian), and age (56, DOB, 3/9/35), 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. Appellant alleges she was discriminated against
when she was downgraded from Services Business Manager, grade UA-7,
to Sales Associate, grade HPP-3, during December 1995, as a result of
a reduction in force (RIF). The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
Appellant, filed a formal complaint alleging that the agency had
discriminated against her as referenced above. At the conclusion of the
investigation, appellant requested a hearing before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ). Thereafter,
the AJ issued a recommended decision without a hearing finding no
discrimination.
In September 1995, the agency announced that it intended to consolidate
base exchanges in several locations across the country. Among these was
a consolidation of the Bolling and Andrews Air Force Base facilities at
Andrews, effective November 23, 1995. As a result of the consolidation,
only one Business Manager (BM) position was available. A comparison
was done of appellant and the BM at Andrews based on performance,
promotability (based on performance ratings), mobility, education,
and years of service. The BM at Andrews received a score of 162 points
and appellant received 120. Therefore, the BM at Andrews retained her
position and appellant was downgraded to sales associate.
The AJ concluded that appellant failed to establish a prima facie case
of disparate treatment discrimination on any bases alleged because
she failed to show that similarly situated employees were treated
differently during the RIF or present any other evidence which would
raise an inference of discrimination. For instance, the AJ noted that
appellant did not alleged that the performance scoring between her and
the BM at Andrews was discriminatory, but instead asserted that others
who were younger, male, or non-Bolivian, were retained or transferred
to equivalent positions while she was downgraded. However, the persons
she cited as comparisons were not similarly situated because they were in
different job categories, were laterally transferred prior to the RIF into
positions appellant was not qualified for, or were competitively promoted
after the RIF. The AJ also noted that appellant failed to produce any
evidence which would show that the agency's alleged violations of RIF
rules had an adverse effect on her or were linked to her national origin,
sex, or age. In light of this evidence, the AJ concluded that appellant
failed to show that the agency discriminated against her as alleged.
On appeal appellant argues that she should have scored higher than the
BM at Andrews and that the General Manager intentionally gave her a low
score. Appellant also alleges that she should have been compared with
all the managers at the same grade or lower with the same job title.
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 find that the AJ correctly determined
that appellant failed to establish a prima facie case of discrimination
on any bases alleged. Regarding appellant's arguments on appeal,
we note that appellant challenges for the first time on appeal, the
agency's comparison scoring of her and the BM at Andrews. However,
she offers no evidence other than her bare assertions in support of
her contention that she should have received a higher score. Likewise,
appellant offers no evidence in support of her assertion that the GM was
motivated by a discriminatory animus when he scored appellant lower than
the BM at Andrews. Therefore, we discern no basis to disturb the AJ's
findings of no discrimination which were based on a detailed assessment
of the record. Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
May 20, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations