01a23242_r
08-28-2002
Sandra E. Wisotsky, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Sandra E. Wisotsky v. Department of the Treasury
01A23242
August 28, 2002
.
Sandra E. Wisotsky,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A23242
Agency No. 99-2051
Hearing No. 150-99-8730X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final action concerning her complaint of
unlawful 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. In her complaint, complainant alleged that she was
discriminated against based on sex (female), age (60), and in reprisal for
prior EEO activity when on September 23, 1998, she was not selected for
the position of Supervisory Customs Inspector GS 1890-13 position under
Vacancy Announcement Number SOFLA/98-022 JLG. The record indicates that
at the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ, after a hearing,
issued a bench decision finding no discrimination.
The AJ determined that complainant did not establish a prima facie case
of retaliation. The AJ found that there was no nexus between the adverse
actions alleged and complainant's previously filed complaint against a
managerial official. Complainant filed the prior complaint approximately
five years before the non-selection herein. The AJ found that this
evidence, combined with complainant's own testimony that the managerial
official gave complainant several favorable assignments subsequent to the
prior complaint in 1993, negated any inference of retaliatory motivation.
With regard to complainant's alleged discrimination on the bases of sex
and age, the AJ determined that complainant established a prima facie
case thereof. The AJ further concluded that the agency articulated a
legitimate, nondiscriminatory reason for its action. A selecting official
testified that he did not select complainant because she lacked judgment
on sensitive issues at times. Specifically, the selecting official
recalled a situation wherein complainant had told an employee she had
supervised, that his rating would have been �outstanding� had it not
been knocked down by the Chief. This employee was upset. The selecting
official testified that he did not think complainant exercised good
judgement in this situation. The selecting official also testified that
complainant was not recommended by her second line supervisor. The AJ
found that the agency articulated a legitimate, non-discriminatory reason
for its action. The AJ also found that complainant did not establish
that more likely than not, the agency's articulated reason was a pretext
to mask unlawful retaliation. The agency's final action implemented the
AJ's decision. Complainant makes no new persuasive contentions on appeal.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
hereby AFFIRMED because 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
August 28, 2002
__________________
Date