Paula Pendergraph, Complainant,v.Condoleezza Rice, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionMay 11, 2007
0120070836 (E.E.O.C. May. 11, 2007)

0120070836

05-11-2007

Paula Pendergraph, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.


Paula Pendergraph,

Complainant,

v.

Condoleezza Rice,

Secretary,

Department of State,

Agency.

Appeal No. 0120070836

Agency No. DOS-F-052-05

Hearing No. 100-2006-00243X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's November 20, 2006 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., and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. Complainant alleged that the agency discriminated against

her on the bases of race (African-American) and age (D.O.B. 11/07/59)

when her candidacy for a position as a Foreign Service Office Management

Specialist (OMS) was terminated on August 2, 2004.

The EEOC Administrative Judge (AJ) initially found that the Agency's

Motion for Summary Judgment correctly stated the material facts

and applicable legal standards of the case, and found there were no

genuine issues of material fact which required resolution at a hearing.

As such, the AJ granted the Agency's Motion. The AJ further found that

the Agency's Motion correctly stated that the record demonstrated the

agency articulated legitimate, nondiscriminatory reasons for its actions,

namely, that there was no credible evidence in the record of either age or

race discrimination with regard to the process used to select qualified

candidates for the position at issue. The AJ found that E1 provided

numerous reasons for her decision to not forward complainant's application

as a qualified applicant for the position at issue. Specifically, E1

stated that in her professional opinion, complainant's Qualification

Determination Sheet used in connection with her application, and her

percentage of specialized and general secretarial experience in her

prior positions indicated that she lacked the necessary concentration

of secretarial skills and thus was not the best fit for the position.

AJ's Decision at 2. The record further indicates that E1 stated that she

was not aware of complainant's race from her application, and the record

indicates that the agency hired over 30 employees over the age of 40 for

the OMS position for which complainant applied. Investigative Report,

at Exhibit 5C.

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 agency's final order,

because the Administrative Judge's issuance of a decision without a

hearing was appropriate1 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.

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

____5/11/07_______________

Date

1 In the context of an administrative proceeding, an AJ may properly

consider issuing a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,

2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,

2003).

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0120070836

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

3

0120070836