01993976
01-05-2001
Sheilagh M. Creighton, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Sheilagh M. Creighton v. Department of Labor
01993976
January 5, 2001
.
Sheilagh M. Creighton,
Complainant,
v.
Alexis M. Herman,
Secretary,
Department of Labor,
Agency.
Appeal No. 01993976
Agency No. 6-09-042
Hearing No. 370-97-X2113
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint
of unlawful employment discrimination in violation of Title VII and
the Age Discrimination in Employment Act (ADEA).<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she was
discriminated against on the bases of age (53) and sex when she was not
selected for one of four (4) GS-110-12 Economist positions advertised
under Vacancy Announcement Number SF-95-070. For the reasons that follow,
the Commission AFFIRMS the agency's final decision.
The record reveals that complainant, a GS-11 Economist at the agency's
Bureau of Labor Statistics in San Francisco, California, filed a
formal EEO complaint with the agency on December 27, 1995, alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Upon informing the parties of her intention
to issue findings and conclusions without a hearing and permitting
an appropriate opportunity for response, the AJ issued a Recommended
Decision (RD) finding no discrimination. See 29 C.F.R. � 1614.109(e).
Thereafter, the agency adopted the RD and issued a FAD, dated February 17,
1999, finding no discrimination. It is from this agency decision that
complainant now appeals. On appeal, complainant contends, among other
things, that the AJ erred in issuing a recommended decision without a
hearing.
The investigative record reveals that three of the four selectees were
males under the age of forty. The selectees had experience and technical
knowledge of the Occupation Compensation Survey Program (OCSP) which was,
during the relevant time frame, expected to continue through the end of
1996. While the complainant was well qualified, she presented no evidence
to show that she had the same OCSP experience as the selectees.
In her RD, the AJ concluded that while complainant established a prima
facie case of age and sex discrimination, she failed to show pretext
in the agency's articulated legitimate, nondiscriminatory reasons
for choosing the selectees. In this regard, the AJ reasoned that the
selectees had more experience which was directly related to the positions
in issue. The AJ further concluded that, while the complainant claimed
that she was better qualified for the positions at issue, she failed
to show that her qualifications were plainly superior to those of the
selectees. See Patterson v. Department of the Treasury, EEOC Request
No. 05950156 (May 9, 1996).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. With respect to
complainant's contention that issues of material fact and credibility
existed sufficient to merit a hearing, we disagree. Nothing presented
by complainant clears her burden to show that her qualifications were
plainly superior to those of the selectees. We further note that
complainant failed to establish that age was a determinative factor
in her nonselection; that is, but for her age she would have been
selected. See Loeb v. Textron Inc., 600 F.2d 1003 (1st Cir. 1979);
LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405,
1409 (7th Cir. 1984); Bowens v. United States Postal Service, EEOC
Appeal No. 01933155 (July 7, 1994). We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
January 5, 2001
Date
Carlton
M.
Hadden,
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant1 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 29 C.F.R. Part
1614 in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.