01970523
06-29-1999
Valerie M. Evans, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Valerie M. Evans, )
Appellant, )
) Appeal No. 01970523
v. ) Agency No. 95580441
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of race (Black), and sex (female), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges she was discriminated against when her promotion to
GS-12 was delayed from December 1992 to July 9, 1995 as a consequence of
the agency's having converted her in 1989 to a job series with diminished
promotion potential. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
initially as an International Trade Specialist, GS-1140-9 in the
agency's Information Management division, Office of Commercial Information
Management. In 1989 her position was converted to Commercial Information
Specialist GS-1101-9. On December 1, 1991, she received a competitive
promotion to Commercial Information Management Specialist, GS-1101-11,
in the same office. Appellant received a career ladder promotion to
Commercial Information Management Specialist, GS-1101-12, on July 9, 1995.
Believing she had been a victim of discrimination, appellant sought EEO
counseling and, subsequently filed a complaint on September 14, 1995,
At the conclusion of the investigation, the agency issued the FAD without
a hearing, pursuant to EEOC Regulation 29 C.F.R. � 1614.110 (1992).
The FAD concluded that appellant failed to establish a prima facie case of
race-based or sex-based discrimination because she presented no evidence
that similarly situated individuals not in her protected classes were
treated differently under similar circumstances. In addition, the FAD
concluded that Appellant had failed to rebut the agency's explanation
for the allegedly discriminatory action.
From the FAD, appellant brings this appeal. Appellant makes no new
contentions in support of her appeal. The agency requests that we affirm.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973) and Malek v. Dept. of Health and Human Services,
EEOC Request No, 05970628 (September 18, 1997) the Commission agrees
with the agency that appellant failed to establish a prima facie case
of racial or sexual discrimination because it was not shown that the
employees whom she cited as receiving more favorable treatment were
�similarly situated.� In reaching this conclusion, we note that the
one employee with whom appellant compared herself worked in a different
unit, at a higher grade level than did appellant and had experience in a
subject matter area different from that of appellant. He was therefore
not similarly situated. Hunter v. United States Postal Service EEOC
Request No. 05960762 (October 1, 1998) (�In order for employees to be
considered similarly situated, all relevant aspects of the employees'
work situation must be identical or nearly identical.�)
The Commission also finds that appellant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. In reaching this conclusion, we
note that most of the evidence concerning the allegedly discriminatory
character of the agency's personnel policies was conclusory in nature
and not based on the witnesses' personal knowledge. It therefore
carries little weight and is insufficient to rebut the agency's
first-hand evidence. See, Sapp v. United States Postal Service EEOC
Request No. 05950672 (September 5, 1997) (�hearsay representations
. . . regarding agency policies� not probative of discrimination) <1>
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, 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:
6/29/99
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 In another
one instance by appellant as evidence of
discrimination, in 1993, a white male was hired by
the agency in a newly created position. This event
provides no support for appellant's case because
appellant herself had earlier been selected for the
same position but declined the appointment which
would have required her to accept a �downgrade.�