01a41343
05-18-2005
Lois E. McDonald v. Department of Agriculture
01A41343
May 18, 2005
.
Lois E. McDonald,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A41343
Agency No. 020061
Hearing No. 170-A2-8478X
DECISION
Complainant appeals to the Commission from the agency's November 10, 2004
decision finding no discrimination. Complainant alleges discrimination
on the bases of age, disability (Bi-Polar), and reprisal when she was not
selected for the position of Receptionist, GS-304-4, Vacancy Announcement
NESC-SM-RB-01-04. After an investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Complainant subsequently
withdrew her request for a hearing and the AJ, by Order dated May 15,
2003 remanded the case to the agency for a decision. The agency issued
the November 10, 2004 decision which complainant now appeals.
The agency, in its November 10, 2004 decision found that assuming
complainant established a prima facie case of discrimination, the agency
presented a legitimate non-discriminatory reason for the non-selection
which complainant failed to adequately rebut. Specifically, the
agency argues that complainant was not selected for the position due
to an extremely negative response from complainant's most recent past
employer which raised concerns about complainant's ability to work with
the public and her ability to handle money. Thus, the agency concluded
that complainant has not shown she was discriminated against on the
bases of age, disability or reprisal.
The record indicates that complainant applied for the position of
Receptionist. Complainant told the selecting official that she had
not held a job in the last five years. Complainant then called the
selecting official and confessed that she worked for the United States
Postal Service for the last seven years, but that problems arose which
turned management against her. The record indicates that the selecting
official called the Postmaster at the post office where complainant
worked. The selecting official described the duties of Receptionist
and asked the Postmaster whether complainant would be a good fit for the
position. According to the selecting official, the Postmaster, without
hesitation, answered �no.� The Postmaster told the selecting official
that complainant was a trouble maker. He told the selecting official
that he would not trust complainant with money. He told the selecting
official that she should do anything possible to bypass complainant.
According to the selecting official, based on that information, she
had concerns about complainant's ability to work with the public and
handle money. Thus, complainant was not selected.
We find the agency has presented a legitimate non-discriminatory reason
for the non-selection which complainant failed to rebut. Complainant
has failed to show, by a preponderance of the evidence, that she was
discriminated against on the bases of age, disability 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
May 18, 2005
__________________
Date