05A20721
08-07-2002
Jacqueline Savukinas, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Jacqueline Savukinas v. Department of Agriculture
05A20721
August 7, 2002
.
Jacqueline Savukinas,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A20721
Appeal No. 01A14379
Agency No. CR980499
Hearing No. 100-AO-7206X
DENIAL OF REQUEST FOR RECONSIDERATION
Jacqueline Savukinas (complainant) timely initiated a request to the
Equal Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Jacqueline Savukinas v. Department of Agriculture, EEOC
Appeal No. 01A14379 (April 4, 2002). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
In the Commission's previous decision, we found that complainant had
not proven her claims that she had been discriminated against on the
basis of her sex, 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
Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq., when
(1) on January 28, 1998, the agency failed to approve her career ladder
promotion to the GS-13 grade level, and (2) she was paid at the GS-12
Economist level while performing the same complexity and volume of
work as a male GS-13 Economist. The appeal was from the agency's final
decision finding no discrimination, entered after an EEOC Administrative
Judge (AJ) issued a decision without a hearing in the agency's favor.
The Commission's decision stated that complainant did not challenge claim
(2) on appeal, and therefore declined to address that claim, and that,
as for claim (1), the Commission agreed with the AJ that complainant
had failed to establish a prima facie case of unlawful discrimination,
as she had failed to present sufficient comparative or other evidence
to support an inference that her sex played a role in her nonpromotion.
The Commission affirmed the agency's final decision.
Complainant raises in her request for reconsideration several challenges
to the Commission's previous decision. First, she disputes the conclusion
that she failed to establish a prima facie case of discrimination as
to claim (1), arguing that she more than met the requirements for such
a showing by demonstrating that she is a member of a protected class
(female); that she occupied a position with a career ladder to the GS-13
level; that she achieved satisfactory or above performance ratings; and
that she was subsequently not promoted to a GS-13 position. However, to
establish a prima facie case of unlawful discrimination under Title VII,
as complainant is attempting to do, she must show not only that she is
a member of a protected group and that she was subjected to an adverse
employment action, but also that she was treated less favorably than
other similarly situated employees outside of her protected group,
or must present other, noncomparative evidence which supports an
inference that the agency was motivated by unlawful discrimination.
Packard v. Department of Health & Human Serv., EEOC Appeal Nos. 01985494,
01985495 (Mar. 22, 2001); see also O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4
(Sept. 18, 1996). Complainant's interpretation of the burden incumbent
upon her to establish a prima facie case for her claim is incorrect as
a matter of law, and we are accordingly unpersuaded that complainant
has established that, on this issue, the previous decision involved a
clearly erroneous interpretation of material fact or law.
Complainant also argues that the previous decision incorrectly discounted
comparative evidence and affidavit testimony, that the Commission
failed to apply a de novo standard of review in arriving at the previous
decision, and that the �failure of the Commission now to issue summary
judgment for the complainant would work a gross miscarriage of justice.�
Our examination of these arguments, however, does not reveal that they
are supported by the evidentiary record. Accordingly, we do not find
that complainant has established that the previous decision involved
a clearly erroneous interpretation of material fact or law, or that it
will have a substantial impact on the policies, practices, or operations
of the agency.
Therefore, after a review of complainant's request for reconsideration,
the previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A14379 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0900)
You are authorized under section 16(b) of the Fair Labor Standards Act
(29 U.S.C. � 216(b)) to file a civil action in a court of competent
jurisdiction within two years or, if the violation is willful, three years
of the date of the alleged violation of the Equal Pay Act regardless of
whether you have pursued any administrative complaint processing. The
filing of the 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 7, 2002
Date