Linda J. Schultz-Wikul, Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionAug 29, 2000
01a03469 (E.E.O.C. Aug. 29, 2000)

01a03469

08-29-2000

Linda J. Schultz-Wikul, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.


Linda J. Schultz-Wikul v. DOD

01A03469

August 29, 2000

.

Linda J. Schultz-Wikul,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

Agency.

Appeal No. 01A03469

Agency No. 98POL042

DECISION

The complainant timely initiated an appeal from a final agency decision

(FAD) 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.<1>

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405). The complainant alleged

that she was discriminated against on the bases of sex (female) and age

(September 14, 1947) when she was not selected for an Operations Research

Analyst, GS-14/15 position under job opportunity number WHS-97-2369-JB.

The record reveals that during the relevant time, the complainant was

unemployed. Believing she was a victim of discrimination, the complainant

sought EEO counseling and subsequently filed a formal complaint on March

16, 1998. At the conclusion of the investigation, the 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.

The complainant requested a hearing, subsequently withdrew the request

and requested that the agency issue a final decision.

In its FAD, the agency concluded that the complainant failed to establish

a prima facie case of discrimination because she failed to show that she

was qualified for the position. Moreover, the agency found that even if

the complainant had established a prima facie case, she failed to show

that the agency's selection from an Office of Personnel Management (OPM)

certification list was pretextual and therefore unlawful discrimination.

On appeal, the complainant contends that she established a prima facie

case of discrimination and the agency's articulated reasons for its

non-selection of her are not credible. Specifically, the complainant

argues that the agency's reliance on the selecting official's (SO)

reasons for his selection are not credible because the SO was never

interviewed during the investigation. The complainant further argues

that the agency violated Department of Defense Directive No. 1402.1 in

making its selection and reiterates her belief that she is more qualified

than the selectee.

In response, the agency continues to argue that the complainant was not

qualified for the position and therefore she failed to establish a prima

facie case of discrimination. The agency further argues that the OPM

Certificate clearly shows the SO's signature on the document and �select

11-03-97" opposite the selectee's name, thereby making its reliance on

the SO's reason credible. We note that the Certificate is contained in

the record and supports the agency's contention. Moreover, the agency

argues that even assuming that the complainant's arguments were valid,

which it does not concede, they are insufficient to meet her ultimate

burden of showing that she was not selected becase of her sex and age.

The agency requests that we affirm its FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,

310 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979), the

Commission agrees with the agency that complainant failed to establish a

prima facie case of sex and age discrimination because she failed to show

that she was qualified for the position. In reaching this conclusion,

we note that the record discloses that the complainant's application

package was submitted to OPM and OPM did not certify her as a qualified

applicant. Moreover, the record contains no evidence that DOD had any

influence on OPM's certification process.

The Commission further finds that the complainant failed to present

evidence that more likely than not, the agency's articulated reasons

for its actions were a pretext for discrimination. In reaching this

conclusion, we note that the agency's reliance on the SO's reason for his

selection is credible. Moreover, even if the agency did violate one of

its own directives with regard to a retiring military employee and the

civilian employment of the selectee, this does not in and of itself prove

that the agency engaged in unlawful sex or age discrimination because

there is no evidence that the complainant would have been selected since

OPM did not certify her as qualified.

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

contentions on appeal and the agency's response, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 29, 2000

__________________

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 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.