Jean L.S. Parrish, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionDec 29, 2005
01a50254 (E.E.O.C. Dec. 29, 2005)

01a50254

12-29-2005

Jean L.S. Parrish, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Jean L.S. Parrish,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 01A50254

Agency No. JH-01-006

Hearing No. 230-2002-04029X

DECISION

On October 5, 2004, complainant filed an appeal from the agency's

September 7, 2004 final order concerning her equal employment opportunity

(EEO) complaint alleging 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 Section 501 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a).

Complainant alleged that the agency discriminated against her on the

bases of national origin (Native American), disability (stress induced

asthma and stress related conditions), and reprisal for prior protected

EEO when, on March 27, 2001, she learned that she had not been selected

for a Supervisory Property Disposal Specialist position, GS-1104-14,

under Vacancy Announcement DRMS-01-835.

The matter was investigated. Following the investigation, complainant

requested a hearing before an EEOC Administrative Judge (AJ). The AJ

conducted a hearing on the matter and issued her decision finding no

discrimination. The AJ found that the agency articulated legitimate,

nondiscriminatory reason for its action, namely, they selected the

two best candidates for the position based on their significant

managerial and field experience. The AJ then turned to complainant

to establish that the agency's reason was pretext for discrimination.

The AJ noted that the essence of complainant's argument was that the AJ

should substitute her judgment as to complainant's qualifications for

the position. The AJ determined that complainant's qualifications were

not observably superior to those of the selectees. Therefore, the AJ

concluded that complainant failed to establish that the agency's reason

was pretext for discrimination. As such, the AJ found that complainant

did not show that the agency's action constituted unlawful discrimination

and/or retaliation.

The agency implemented the AJ's findings and conclusions. Complainant

appealed arguing that she should have been scored based on her own

calculations as one of the two highest applicants. Further, complainant

asserted that management officials conspired to ensure that complainant

was not selected for the position. Complainant claimed that the AJ

erred on several fronts and requests that the Commission overturn the

AJ's findings and rule in complainant's favor.

For the purposes of analysis, we assume complainant is an individual with

a disability. 29 C.F.R. � 1630.2(g)(1). After a review of the record

in its entirety, including consideration of all statements submitted on

appeal, it is the decision of the Equal Employment Opportunity Commission

to affirm the final agency order because the Administrative Judge's

ultimate finding, that unlawful employment discrimination was not proven

by a preponderance of the evidence, is supported by the record.

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

December 29, 2005

__________________

Date

3

01A50254

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036