Hannah T. Hoopengarner, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 28, 2000
01976819 (E.E.O.C. Feb. 28, 2000)

01976819

02-28-2000

Hannah T. Hoopengarner, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Hannah T. Hoopengarner v. Department of the Navy

01976819

February 28, 2000

Hannah T. Hoopengarner, )

Complainant, )

) Appeal No. 01976819

v. ) Agency No. DON 96-00146-001

) Hearing No. 140-96-8086X

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

Complainant timely initiated an appeal from a final agency decision (FAD)

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of reprisal (prior EEO activity),

and age (10/15/41), in violation of Title VII of the Civil Rights Act of

1964, 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.<1>

Complainant claims she was discriminated against when she was not selected

for the position of Supply Systems Analyst, GS-2003-05 KPP GS-2003-11.

The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified at 29 C.F.R. � 1614.405). For the following

reasons, the agency's decision is AFFIRMED.

At the conclusion of the investigation, complainant requested a hearing

before an Equal Employment Opportunity Commission (EEOC) Administrative

Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a

Recommended Decision (RD) without a hearing, finding no discrimination.

The agency's FAD adopted the AJ's finding of no discrimination. It is

from this decision that complainant now appeals.

The record reveals that during the relevant time, complainant was

employed as a Supply Technician, at the agency's Supply Directorate,

Fleet & Industrial Supply Center, Marine Corps Air Station, Cherry Point,

North Carolina.

The AJ concluded that complainant established a prima facie case of

age discrimination because the selectee, who was 40 years of age, was

significantly younger than complainant so as to support an inference

of discrimination. Also, the AJ determined that complainant failed to

establish a prima facie case of reprisal.

Considering that complainant established a prima facie case of age

discrimination, and assuming, arguendo, complainant established a prima

facie case of reprisal, the AJ concluded that the agency articulated

legitimate nondiscriminatory reasons for not selecting complainant.

The selectee was chosen because she had the highest overall cumulative

score. The AJ found that the selection committee gave the selectee a

higher rating than complainant because the selectee gave better responses

to the interview questions, and she was more competent.

The AJ noted that the agency was more interested in a candidate's

potential rather than past experiences because the position required

on-the-job training. Therefore, the AJ determined that whether

complainant had more experience than the selectee was irrelevant.

Furthermore, the AJ noted that the selection committee rated complainant

fifth, and he was not recommended as one of the top three candidates for

selection. The AJ concluded that if the selectee had not been chosen,

complainant still did not receive a high enough rating from the selection

panel to be considered for selection.

The AJ determined that complainant failed to establish that the agency's

articulated reasons were a pretext to mask unlawful discrimination.

Complainant did not provide any evidence that she was better qualified

for the position than the selectee. Additionally, the AJ found that

complainant failed to show that the position did not require on-the-job

training, and that past experience was required for the position.

After a careful review of the record, the Commission finds that the

AJ's RD 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 in retaliation

for complainant's prior EEO activity or were motivated by discriminatory

animus toward complainant's age. We discern no basis to disturb the AJ's

findings of no discrimination which were based on a detailed assessment

of the record.

Therefore, after a careful review of the record, complainant's contentions

on appeal, the agency's response, and arguments and evidence not

specifically addressed in this decision, we AFFIRM the FAD.

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).

COMPLAINANT'S 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 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:

February 28, 2000

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 Equal Employment Assistant

1On 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.