01A40223_r
02-12-2004
Marilyn E. Hampton, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Marilyn E. Hampton v. Department of Transportation
01A40223
February 12, 2004
.
Marilyn E. Hampton,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A40223
Agency No. 5-02-5003
Hearing No. 310-A2-5504X
DECISION
Complainant appeals to the Commission from the agency's August 25, 2003
decision finding no discrimination. Complainant alleges discrimination
on the bases of age (date of birth: February 12, 1945) and reprisal for
prior EEO activity when, in July 2001, she was not selected for a GS-12
Contracting Officer position. Following a hearing, an Administrative
Judge (AJ) issued a decision on July 17, 2003, finding that complainant
had not been discriminated against. Specifically, the AJ found that the
agency presented a legitimate, nondiscriminatory reason for its actions,
which complainant failed to rebut. The agency, on August 25, 2003,
issued a decision adopting the AJ's decision. Complainant now appeals
from that decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We find that the agency has shown a legitimate nondiscriminatory reason
for the nonselection. Management provided evidence that they followed
the procedures outlined in the agency's divisions' guidance and that
complainant did not rank as highly as the selectees. The ranking panel
members stated that the selecting officials had no involvement in how
the candidates ranked according to the criteria. The selecting panel
testified that they selected candidates recommended by the ranking
panel using the process set forth in AMQ-1 Memorandum dated March 28,
2001, titled �Suggested Applicant Evaluation Process (Revision 1).�
The selecting panel contended that this process has been used to make
a number of selections in the Office of Acquisition Services over the
past several years. The selecting panel asserted that the usage of this
standardized process has resulted in fair and impartial evaluations of
the candidates in each instance.
Complainant has failed to rebut the agency's articulated legitimate,
nondiscriminatory reason. Complainant has failed to show that she was
plainly superior to the selectees. Complainant has failed to show,
by a preponderance of the evidence, that she was discriminated against
on the bases of age or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
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
February 12, 2004
__________________
Date