01a03559
07-27-2000
Ruby L. Oliver v. Department of the Interior 01A03559 07-27-00 .Ruby L. Oliver, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Ruby L. Oliver v. Department of the Interior
01A03559
07-27-00
.Ruby L. Oliver,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A03559
Agency No. FWS-99-030-R4
DECISION
On April 13, 2000, Ruby L. Oliver (hereinafter referred to as complainant)
initiated a timely appeal to the Equal Employment Opportunity Commission
(Commission) with regard to her complaint of discrimination in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> Accordingly, the appeal is accepted by this
Commission in accordance with 64 Fed.Reg. 37,644, 37,659 (1999) (to be
codified at 29 C.F.R. � 1614.405). Based upon a review of the record,
and for the reasons stated herein, it is the decision of the Commission
to AFFIRM the final agency action.
The issue on appeal is whether complainant proved, by a preponderance of
the evidence, that she was discriminated against on the basis of her age
(48), and in reprisal for prior EEO activity when she was not selected
for the position of Personnel Management Specialist, GS-12.
Complainant filed a formal EEO complaint in May 1999, raising the
above-referenced allegation of discrimination.<2> The agency accepted
complainant's complaint for processing, and conducted an investigation.
The agency then provided complainant with a copy of the investigative
report and notified her of her right to request an administrative hearing
within 30 days. Complainant failed to respond to the notice within the
specified time period. Thereafter, the agency issued a final decision
finding that complainant had not been subjected to discrimination
as alleged. It is from this decision that complainant now appeals.
After a careful review of the record, the Commission finds that the
agency correctly determined that complainant was not subjected to age
and reprisal discrimination. The agency initially found that while
complainant established a prima facie case of age discrimination, she
failed to establish a prima facie case of reprisal, given that her prior
EEO activity occurred several years before the nonselection at issue.
Further, the agency correctly determined that complainant failed to show
that the stated reason for her nonselection, that is, the experience and
qualifications of the selectees, was pretextual. Although complainant
asserted that she had more years of experience at the agency than the
selectees, years of experience do not necessarily render a candidate
better qualified for a position. Accordingly, it is the decision of
the Commission to AFFIRM the final agency decision.
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
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 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, Acting Director
Office of Federal Operations
___07-27-00_______________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1On 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.
2During counseling, complainant also raised an issue concerning the
full performance level of her position; however, complainant ultimately
withdrew that matter.