01a54168_r
12-16-2005
Hilda A. Kogut, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Hilda A. Kogut v. Department of Justice
01A54168
December 16, 2005
.
Hilda A. Kogut,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A54168
Agency No. 187-2-734
DECISION
Complainant timely initiated an appeal from a final decision 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. For the following
reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Special Agent at the agency's Hudson Valley Resident Agency (HVRA)
in New York facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on December 9, 2002, alleging that she was
discriminated against on the bases of sex (female) and age (51) when:
Complainant was not considered for the position of Senior Supervisory
Resident Agent (SSRA) in the Hudson Valley Resident Agency in October
2002.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its final decision, the agency concluded that the record failed to
demonstrate that complainant was discriminated against on the basis of age
for the reason that the selectee, and six other agents, all of whom were
promoted to the GS-14 level, were all over the age of 40, and, in fact,
the selectee was only six years younger than complainant at the time he
was selected for the subject position. Accordingly, the agency found that
complainant failed to establish a prima facie case of age discrimination.
The agency further found that the selecting official had the authority to
select a candidate for reassignment to the position instead of advertising
the subject position for competition. The agency concedes that, had
the position been advertised, complainant would have been a qualified
candidate for promotion to the position. However, the agency found that
the selecting official's preference for promoting agents to supervisory
positions who have previously served in a management position in the
agency's Manhattan office was not a discriminatory policy or violation
of Title VII.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act);
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing
that age was a determinative factor, in the sense that "but for" age,
complainant would not have been subject to the adverse action at issue);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission agrees
with the agency that complainant failed to establish a prima facie case
of age discrimination because both complainant and the selectee were in
the protected group (that is, over 40 years of age) and the difference
between complainant's age and that of the selectee, was not great,
but only a few years.
With respect to complainant's claim that she was not considered for the
subject position because of sex, we find that complainant has established
a prima facie case of sex discrimination. The record shows that
complainant was well-qualified for the position, she was not considered,
nor selected for the position, and a male candidate was selected instead.
In his statement, the selecting official, S1, explains that he did not
consider complainant for the position for several reasons. Specifically,
S1 states that he preferred not to select a candidate who would then be
supervising the same squad to which the candidate had been previously
assigned. Additionally, S1 stated that he preferred to fill the SSRA
position with a candidate who had previously worked for the agency's
headquarters office in Manhattan in a management position. Lastly, S1
did not consider complainant for the position because he would have had
to advertise the position, and he preferred to fill the vacancy through
a lateral reassignment. The Commission notes that the agency concedes
that S1's unwritten promotion policies, while not consistently applied in
some respects (the evidence indicates that several promotions occurred
where the candidate then supervised his own squad), nevertheless, was
not unknown in the agency. Rather, witness statements confirm that S1's
feeling that supervisory personnel should have management experience
in the Manhattan office to be eligible to serve as a supervisor in
the resident agencies was well known. We find the record void of any
evidence linking complainant's sex with S1's decision not to advertise
the position, and his philosophy regarding supervisory assignments.
Therefore, after a careful review of the record, we AFFIRM the agency's
final decision finding no discrimination.
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
December 16, 2005
__________________
Date