05A20455
05-30-2002
Sally Kann, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Sally Kann v. Department of the Army
05A20455
May 30, 2002
.
Sally Kann,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Request No. 05A20455
Appeal No. 01A20005
Agency No. ANBKFO9912J0490
Hearing No. 170-AO-8604x
DENIAL OF REQUEST FOR RECONSIDERATION
Sally Kann (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Sally Kann v. Department of the Army, EEOC Appeal No. 01A20005
(January 30, 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).
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).
Complainant alleged that she was discriminated against on the basis of sex
(female) when she was not selected for the position of Civilian Executive
Assistant, GS-15, at Letterkenny Army Depot. The previous decision
affirmed the agency's adoption of an EEOC Administrative Judge's (AJ)
finding of no discrimination, issued after a hearing. In so doing,
the previous decision noted that the AJ's ultimate finding that unlawful
employment discrimination was not proven by a preponderance of the
evidence, was supported by the record.
The AJ found that complainant established a prima facie case of
discrimination in that she applied and was qualified for the position in
question, but was not selected in favor of a male applicant. The AJ
concluded, however, that complainant failed to establish that the
agency's legitimate nondiscriminatory explanation for its selection
was a pretext for discrimination. In so finding, the AJ noted that the
selecting official testified that the selectee (S1) was an excellent fit
for the position and had specific experience and education applicable
to the position, which complainant did not have. Although complainant
asserted that she was better qualified, the AJ determined that she
failed to establish that she was better qualified than S1. The AJ
concluded that complainant provided insufficient evidence to establish
that discrimination motivated the selection at issue.
In her request for reconsideration, complainant contends that two
agency witnesses committed perjury. She provides no further details
concerning this claim and although she attaches portions of the hearing
transcript, she does not indicate in what manner the named witnesses
perjured themselves. Nor does she provide any argument to demonstrate
that the previous decision involved a clearly erroneous interpretation
of material fact or law, or will have a substantial impact on the
policies, practices, or operations of the agency. Accordingly, it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A20005 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.
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
May 30, 2002
Date