05a50207
12-13-2004
Rosa Smith, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Rosa Smith v. Army and Air Force Exchange Service
05A50207
December 13, 2004
.
Rosa Smith,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Request No. 05A50207
Appeal No. 01A44954
Agency No. 02-087
DENIAL
Rosa Smith (complainant) timely requested reconsideration of the
decision in Rosa Smith v. Army and Air Force Exchange Service, EEOC
Appeal No. 01A44954 (October 20, 2004). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to 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).
In her request, complainant stated that the decision was incorrect
in that she was not working at the an agency facility in Frankfurt,
Germany, but at Fort Gordon, Georgia. She asserts that she was more
qualified than the selectee because she had experience selling wine and
liquor which were the products that the selectee would be responsible
for selling. Complainant contends that the decision was incorrect in
quoting one of the interviewers for the position as stating that she had
an outrageous attitude that turned people off. She stated that she has
copies of the affidavits of all three of the interviewers and none had
made that comment.
In the instant complaint, we find that our previous decision was in
error when it stated that complainant was working in Frankfurt, Germany.
The record demonstrates that complainant was working at Fort Gordon
Georgia, at the time she filed the complaint. However, we find that this
is harmless error in that the agency was aware that she worked at Fort
Gordon, Georgia, and it was aware of this when she was not selected.
Further, it had no bearing on the finding of no discrimination in the
previous decision.
We respect to complainant's contention that the previous decision was
incorrect in stating that one of the interviewers stated that she had
an �outrageous attitude and, it does turn people off,� we find the
previous decision was in error. A review of the record indicates
that the statement was not made by one of the interviewers but was
made by a one of complainant's co-workers who was not involved in the
selection process. However, we find that this is not a �material fact.�
The selecting official stated that the selectee was hired because she
had more retail experience and better knowledge of store products.
She further stated that complainant came to the interview unprepared
and unenthusiastic. We find that these reasons suffice as a legitimate
nondiscriminatory explanation for the agency's selection of the selectee
and non-selection of complainant. We agree with the previous decision
that complainant presented no persuasive evidence that the agency's
legitimate nondiscriminatory explanation for its selection were a pretext
for unlawful discrimination.
After reconsidering 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), and it is the decision of the Commission
to deny the request. The decision in EEOC Appeal No. 01A44954
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
December 13, 2004
__________________
Date