01a04040
03-27-2001
Annette Arkeketa-Rendon, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Annette Arkeketa-Rendon v. Department of the Army
01A04040
March 27, 2001
.
Annette Arkeketa-Rendon,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A04040
Agency No. BHAAF0980310100
Hearing No. 360-99-8738X
DECISION
Complainant timely initiated an appeal from the agency's final action
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.<1> The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges
she was discriminated against on the bases of race (American Indian),
color (brown), national origin (American Indian) and sex (female) when,
on February 18, 1999, she was not selected for either of two positions of
Production Controller (Aircraft) GS-1152-11, and she was not interviewed
for the positions. For the following reasons, the Commission affirms
the agency's final action.
The record reveals that complainant, a GS-9, Maintenance Material
Coordinator at the agency's Production Control Division, Corpus
Christi Army Depot, Corpus Christi, Texas facility, filed a formal EEO
complaint with the agency on April 20, 1998, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Determining that there were no material facts in dispute, the AJ issued
a decision without a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination, but found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The agency demonstrated that
interviews for both positions were held during the week of January 26,
1998, when complainant was on annual leave and out of state. The agency
officials responsible for making each selection (RO1 and RO2) both
testified at a Fact Finding Conference that they did not interview
complainant because she was unavailable that week. They each averred
that the Personnel Specialist informed them that the selections must
be made by the end of that week in order to keep the job slots, and
that according to agency regulations,<2> they need not interview a
candidate if that candidate were not available for three or more days.
They need only review the candidate's application. RO1 averred that,
even though he interviewed the other candidates, he primarily based his
selection on their applications and selected Selectee 1 because she had
more experience in program management. He stated that complainant had
experience in parts management, but not program management.
RO2 averred that he thought complainant was a good candidate, but was
also looking for someone with program management experience. He stated
that even if he had interviewed complainant, he would have selected
Selectee 2 because he had more experience.
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/retaliation. In reaching this conclusion, the AJ compared
the Selectees' applications with that of complainant's and found that
both Selectees had several more years of experience than complainant,
and higher appraisal ratings and more awards than complainant.
The agency's final action implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final action.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
race, color, national origin or sex. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 27, 2001
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 They cited CCAD Regulation 690-25.