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.