01982777
12-10-1999
Sherry Oshiver, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Sherry Oshiver, )
Complainant, )
) Appeal No. 01982777
v. ) Agency No. OS-96-014
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female) and in reprisal for prior EEO activity in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> Complainant alleges she was discriminated against when:
(1) she was not selected to serve on the Bureau of Mines Closure Team;
and (2) she was not placed non-competitively in a GS-14 position with
the Bureau of Land Management. The Commission accepts the appeal in
accordance with EEOC Order No. 960.001 and for the following reasons,
affirms the FAD as clarified herein.
The record reveals that during the relevant time, complainant was
employed as a GS-14 Regulatory Impact Analyst at the agency's now
defunct Bureau of Mines. Believing the agency discriminated against
her as referenced above, complainant sought EEO counseling and filed
a complaint on August 1, 1996. At the conclusion of the investigation,
when complainant failed to make a timely request for a hearing before
an EEOC Administrative Judge, the agency issued a final decision from
which complainant now appeals. Complainant did not submit a statement in
support of her appeal. The agency requests that we correct its failure
to dismiss the second claim on procedural grounds and that we affirm
its finding of no discrimination concerning the first claim.
Claim #1
Based upon the standards set forth in McDonnell Douglas v. Green,
411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency that complainant failed to
establish a prima facie case of retaliation when she was not selected
for the Closure Team. In reaching this conclusion, we note that the
Selecting Official had no knowledge of complainant's prior protected
activity when he made the selections. While we agree with the agency's
conclusion that complainant failed to establish a prima facie case of
sex discrimination, we note that the agency's analysis was erroneous in
so far as it was based on a similarly situated male employee not being
chosen. Rather, complainant, whose background was in programming and not
administration, failed to prove a prima facie case of sex discrimination
because since the Director of Information and Analysis did not forward
her name to the Selecting Official, she was not eligible for selection.
See Davidson v. NASA, EEOC Appeal No. 01965627 (October 2, 1998). We also
note that the selectees, a group which included six women and three men,
had primarily administrative backgrounds.
Claim #2
Upon further review, we agree with the agency's argument on appeal that
complainant's second claim should have been dismissed pursuant to 64
Fed. Reg 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(4)) since complainant raised the same
claim on appeal to the Merit Systems Protection Board (MSPB).<2>
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we affirm the FAD
as clarified.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S1199)
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 (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:
December 10, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
__________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 The Commission notes that in Oshiver v. Department of the Interior,
EEOC Petition No. 03980122 (February 22, 1999), complainant did not
raise sex discrimination before the MSPB in connection with this claim,
and we affirmed the MSPB's finding of no retaliation.