0520130407
09-05-2013
Barbara Darby, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Barbara Darby,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520130407
Appeal No. 0120123521
Hearing No. 570-2011-00179X
Agency No. 2004-0558-2010103014
DENIAL
Complainant timely requested reconsideration of the decision in Barbara Darby v. Department of Veterans Affairs, EEOC Appeal No. 0120123521 (March 15, 2013). 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 the appellate decision, Complainant alleged that the Agency discriminated against her on the bases of race (Black) and reprisal for prior protected EEO activity when: (1) she was denied a career ladder promotion to the GS-9 level in her Program Support position; and (2) on April 30, 2010, management changed her position from Program Support Assistant, GS-8, to Secretary GS-8. The Agency issued a FAD after Complainant withdrew her request for a hearing. The Agency found that it articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not recommended for promotion based on work errors and her attitude regarding team work and customer service. Moreover, a desk audit showed that the duties she performed were not at the GS-9 rating. The desk audit found that the Program Support Assistant positions were misclassified and contained duties that were not beyond the GS-7 level. Therefore, the position title was changed to Secretary, GS-8, in order for the Program Support Assistants to keep their GS-8 rating. The Agency found that Complainant failed to demonstrate that the Agency's articulated legitimate, nondiscriminatory reasons were a pretext for discrimination. Therefore, the Agency found that Complainant failed to show that she was subjected to discrimination. The Commission affirmed the Agency's finding of no discrimination.
REQUEST FOR RECONSIDERATION CONTENTIONS
In her request for reconsideration, Complainant contends that she had a different supervisor every year and none of them ever discussed discrepancies regarding her work performance. Further, Complainant maintains that four other people who had previously held her position were promoted to the GS-9 level, yet she was not considered. Moreover, Complainant asserts that the record did not include an affidavit from the Human Resources Specialist who advised management to promote Complainant. Finally, she contends that the Agency, on several occasions, created positions for employees to be promoted into, including, the Management and Program Analyst position.
ANALYSIS AND FINDINGS
After reviewing 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. We find that Complainant has failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Further, we find that Complainant, notwithstanding the arguments raised in her request, has not shown that discriminatory animus was involved regarding the promotion or assignment. With regard to the assignment, it appears that everyone with Complainant's position title, Program Support Assistant, had their title changed to Secretary so this was not a situation that was unique to Complainant. Further, while other employees may have been promoted, Complainant failed to show that she was not promoted because of her race or prior EEO activity. The Commission has long held that as long as a job action is not based on discriminatory factors it is not a violation of Title VII. Accordingly, the decision in EEOC Appeal No. 0120123521 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
____9/5/13______________
Date
2
0520130407
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130407