Mary H. Holmes, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionAug 4, 2005
01a41406 (E.E.O.C. Aug. 4, 2005)

01a41406

08-04-2005

Mary H. Holmes, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.


Mary H. Holmes v. Department of the Interior

01A41406

August 4, 2005

.

Mary H. Holmes,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

Agency.

Appeal No. 01A41406

Agency No. LMS-03-002

DECISION

The complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful 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 the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission affirms the agency's final decision.

The record reveals that during the relevant time, the complainant was

employed as a Land Law Examiner at the agency's Minerals Management

Service in New Orleans, Louisiana. The complainant alleged that she was

discriminated against on the bases of her sex (female), color (Dark),

and age (D.O.B. 12/17/1953) when she discovered that a position for

which she had applied several times was filled non-competitively by a

Presidential Management Intern.

At the conclusion of the investigation, the complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. The complainant

requested that the agency issue a final decision.

In its FAD, the agency concluded that the complainant had not been

discriminated against because the agency had not selected anyone from

the vacancy announcements for the positions for which the complainant

applied. Those announcements had been cancelled; and the position

occupied by the Presidential Management Intern had been filled outside

of the merit process.

On appeal, the complainant contends that she was better qualified than

the younger, male, lighter complexioned Presidential Management Intern

and that the agency should have selected her rather than placing the

Intern non-competitively. The agency requests that we affirm its FAD.

The Commission finds that the complainant has not shown that she was

subjected to discrimination because the agency did not select from

either of the vacancy announcements for which the complainant applied. In

reaching this conclusion, we note that the record shows that the vacancy

announcements were cancelled, no selection was made for the positions for

which the complainant applied and the position to which the Presidential

Management Intern was appointed had a different job title. In addition,

the placement was through a different career ladder progression.

Moreover, the complainant has not shown that the complainant's color,

sex or age were determinative factors in the agency's decision to reassign

the Presidential Management Intern.

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 FAD.

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

August 4, 2005

__________________

Date