0120102443
09-24-2010
Danielle C. Diaz, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Danielle C. Diaz,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120102443
Agency No. F-09-6585
DECISION
Complainant filed an appeal from the Agency's May 17, 2010 final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Intelligence Analyst at the Agency's Counterterrorism Division (CTD) in Washington, DC. On February 23, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Cuban) and sex (female) when:
1. Upon transferring to an Intelligence Analyst position on November 7, 2008, Complainant did not receive the highest previous pay rate (HPR).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request dated June 23, 2009, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that Complainant occupied the position of FBI Police Officer, GS 7, when she applied for a position as an Intelligence Analyst (GS-7). Complainant had been initially hired in August 2006 into the Agency's Police Unit as a Police Officer (GS-7). Complainant accepted an offer to become an Intelligence Analyst (IA) in March 2008. However, the Police Unit only agreed to release Complainant in November 2008, after she had completed a 2-year employment agreement. In August 2008, Complainant was promoted to FBI Police Officer, GS-8. Agency Final Decision (Ag Decision), May 17, 2010, at 1.
The Agency considered Complainant's allegations that Complainant was ultimately informed on October 16, 2008, by an official of the Agency's Human Resources Department (HRD), H1, that she would receive her highest previous pay rate (HPR), but that she would have to take a demotion back to the GS-7 level, when she entered into duty in the IA position. Ag Decision, at 2. Subsequently, on November 7, 2008, which was Complainant's last day in the Police Officer position, H1, informed Complainant that her salary would be set at GS-7, step 6, and not GS-7 Step 10, as Complainant had expected under the HPR policy. Id.
The Agency found that the Chief of the Agency's HR Division, H2, explained that Complainant was not entitled to HPR because her move from the Police Officer position to the IA position was not a reassignment (as it would have been in March 2008), but a demotion when it occurred in November 2008. The Agency noted evidence that other employees making similar transfers had been paid HPR in error and that the Agency was taking steps to correct that error. The Agency found the preponderance of the evidence did not show that Complainant's salary was impacted by her sex or national origin as alleged. Ag Decision at 5, 6.
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
On appeal, Complainant argues that the Agency has provided no evidence that it is correcting the error that it claims was discovered only in time to diminish her salary, while other, male employees making the same transfer she did received HPR. Complainant argues that if the Agency only adjusts the salaries of the transferees to repay a portion of the overpayments, they are still treated better than she has been treated. Complainant's Brief on Appeal, June 20, 2010.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
In the instant case, we find the Agency's Final Decision is supported by the record. We note specifically that the evidence includes the statements of multiple officials from the Agency's HRD, as well as the applicable policies pertaining to circumstances where employees transfer from one position to another. See, e.g. Sworn Statement, April 30, 2009, Unit Chief (UC), Staffing and Position Management Unit (STMU), Human Resources Division (HRD); Electronic Mail Message to Complainant, November 25, 2008, Supervisory HR Specialist, STMU; Proposed Changes To The Manual Of Administrative Operations And Procedures (MAOP) And Manual Of Investigative Operations And Guidelines (MIOG), August 13, 2000. We further find evidence that the error described in the Agency's Final Decision that created the pay disparity identified in Complainant's complaint, is further addressed in communications as an issue that needs to be addressed and corrected, as the Agency's Final Decision indicated. Sworn Statement, supra; Electronic Mail Message from [H1], HR Specialist, May 12, 2009. Significantly, we find nothing in the evidence indicates that Complainant's national origin or sex played any role in the Agency's decision to establish her salary at the GS-7, Step 6 level upon her transfer to the IA position.
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final decision, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (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
September 24, 2010
__________________
Date
2
0120102443
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102443