01A22921_r
08-06-2002
Velma Jones, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Velma Jones v. Department of the Navy
01A22921
August 6, 2002
.
Velma Jones,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22921
Agency No. DON 95-41273-020
Hearing No. 150-99-8424X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.
The record reveals that complainant, a Personnel Staffing Clerk at
the agency's Navy Education and Training, Professional Development and
Technology Center, Pensacola, Florida, filed a formal EEO complaint on
April 10, 1995, alleging that the agency had discriminated against her
on the bases of race, age, and in reprisal for prior EEO activity when:
(1) on January 20, 1995, the Human Resources Office, Pensacola, Florida
(Activity) gave her low ratings for the positions of Employee Development
Specialist, GS-235-7/9, Merit Promotion Announcement CPE-345(94); and
Position Classification Specialist, GS-221-5/7/9/11, Merit Promotion
Announcement CPE-374(94);
(2) on February 1, 1995, she was not selected for the positions
of Employment Development Specialist, GS-235-7/9, Merit Promotion
Announcement CPE-345(94) and Position Classification Specialist,
GS-221-5/7/9/11, Merit Promotion Announcement CPE-374(94); and
(3) HRO officials subjected her to a continuous pattern and practice of
inconsistent use of the Merit Staffing Plan in rating her, which hindered
her opportunity for advancement.
The record further reveals that on October 26, 1995, the agency
dismissed complainant's complaint because she filed a civil action in the
U.S. District Court of Northern District of Florida, Pensacola Division
(Case No. 3:96cv163/RV). On September 30, 1996, the U.S. District
Court of Northern District of Florida issued a decision concluding that
complainant failed to exhaust her administrative remedies. The record
reveals that on October 28, 1996, complainant filed an appeal to the
Commission which was dismissed on the grounds that it was untimely filed.
Jones v. Department of the Navy, EEOC Appeal No. 01971942 (August 15,
1997).
In her request for reconsideration, complainant stated that since her
civil action was dismissed, she wished to pursue her administrative
remedies and that she filed her appeal with the Commission within 30 days
of the date she received the U.S. District Court Order. The Commission
granted complainant' s request in part and modified the agency's final
decision dismissing complainant's complaint. Specifically, the Commission
upheld the U.S. District Court of Northern District of Florida's judgment
for the agency concerning complainant's disability claim and found that
it had been adjudicated against her. The Commission determined that on
remand, the agency was not to process the disability claim. However,
the Commission found that complainant's administrative complaint was
not adjudicated in Federal court and that she timely filed her appeal.
Moreover, the Commission determined that on remand, the agency shall
request an Administrative Judge (AJ) to conduct a hearing on her
complaint. Jones v. Department of the Navy, EEOC Request No. 05971026
(June 14, 2000).
Following the Commission's July 14, 2000 decision, the agency requested
an AJ to conduct a hearing on complainant's complaint. The AJ issued a
decision without a hearing, which is the subject of the present appeal,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on all bases. The AJ further concluded that
the agency provided legitimate, nondiscriminatory reasons for its
actions. The AJ found that complainant did not establish that more
likely than not, the agency's articulated reasons were a pretext to
mask unlawful discrimination and retaliation. The AJ found that with
respect to provision (1), complainant's contentions that her education
and credentials warrant a higher rating to be irrelevant and that she
failed to provide evidence showing that she received a lower rating than a
similarly situated individual with her same qualification. Further, the
AJ found that complainant received a lower rating than the selectees in
terms of experience because her application did not show direct relevant
experience to either the training or classification positions.
Regarding provision (2), the AJ found that the "highly qualified"
selectee for the Employee Development Specialist position had considerable
experience working the Employee Development area and was recommended by
the panel while complainant's work experience as a federal employee is
clerical in nature. Further, as to the Position Classification Specialist
position, GS-221-05, the AJ noted that the "highly qualified" selectee
had experience closely related to the Position Classification Specialist
position while complainant indicated no such, directly applicable
experience. With respect to complainant's contentions that two male
GS-11 employees were reassigned as GS-11 Staffing Specialists based on
their education, the AJ found that the record contains complainant's
second level supervisor's affidavit dated July 19, 1995 concerning
their reassignment. In his affidavit, the supervisor states that the
two male GS-11 employees were on a Priority Placement list because
their activity was being closed and were transferred into Staffing
Specialist GS-11 positions. The supervisor further states because
of their status as �surplus employees,� the two male GS-11 employees'
qualifications were waived. Moreover, the AJ found complainant failed
to provide evidence showing that one of the selectees in question was
�preselected� because she is married to another agency employee.
Regarding claim (3), the AJ concluded that complainant failed to
establish a common thread between the nonselections currently at bar and
any positions she may have applied for over her years with the agency.
Although complainant maintains that the positions she applied for should
all be viewed as being similar because they allegedly fell under the
Human Resources Office, the AJ found that the positions complainant
applied for and was rated over the years differ in title, qualifications,
duties, and involved different rating panels and selecting officials.
Further, the AJ found that the final and only timely raised nonselections
in question were found to be nondiscriminatory.
The agency's final order implemented the AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not a discriminatory
intent existed is a factual finding. See Pullman-Standard v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Accordingly, the agency's final action implementing the AJ's decision
was proper and is AFFIRMED.
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 6, 2002
__________________
Date