0520130223
06-19-2013
Janice L. Johnson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Janice L. Johnson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Request No. 0520130223
Appeal No. 0120122824
Agency No. FS-2011-00955
DENIAL
Complainant timely requested reconsideration of the decision in Janice L. Johnson v. Department of Agriculture, EEOC Appeal No. 0120122824 (November 29, 2012). 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 underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) in violation of the Equal Pay Act (EPA). In a letter dated December 22, 2011, the Agency accepted the following claim for investigation:
Whether Complainant was subjected to discrimination based on sex (female) when, beginning on May 6, 2010 and continuing, she was required to perform the duties of a GS-9 (or higher) Telecommunications Specialist, but management refused to promote her from her GS-7 Computer Assistant position or compensate her accordingly.
The letter informed Complainant that if she did not agree with the defined claim, she must provide the Agency with sufficient reasons, in writing, within seven calendar days of receipt of the letter. There is no indication in the record that Complainant disputed the Agency's definition of the claim in accordance with the letter.
The appellate decision affirmed the Agency's final decision finding no sex discrimination. Like the Agency's final decision, the appellate decision analyzed Complainant's complaint under a Title VII disparate treatment framework. Specifically, the appellate decision found that Complainant failed to prove, by a preponderance of the evidence, that the legitimate, nondiscriminatory reasons articulated by management were a pretext for sex discrimination. In so finding, the appellate decision cited the following affidavit testimony from management: (a) Complainant was formally assigned as a Computer Assistant within the Asset Management Team (AMT); (b) in May 2010, the Billing and Ordering Team (BOT) had accrued a substantial backlog, but budgetary and organizational concerns limited the hiring of employees to address this workload; (c) at that time, Complainant expressed an interest in performing the BOT duties and was selected to assist with the BOT workload; (d) Complainant indicated to management that she did not mind working on the BOT and had not asked to return to the AMT; (e) when Complainant expressed concern with being asked to perform duties above her pay grade, management gave her the option of requesting a desk audit or returning to her formal position - but Complainant did neither; (f) in further response to Complainant's concerns, management made manpower requests (unsuccessfully) to detail Complainant to the GS-9 level and approved performance awards for her; (g) when Complainant expressed interest in a detail as a GS-9 Telecommunications Specialist, management approved her selection for that detail even though Human Resources had initially found that she was not qualified.
In her request for reconsideration, Complainant argued that her formal complaint included an EPA claim that had not been addressed. In addition, Complainant argued that management's testimony indicated that she had been functioning in a higher graded position since May 2010.
Upon review, we find that Complainant's request for reconsideration does not demonstrate 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.
First, Complainant failed to show that the appellate decision clearly erred in not addressing her EPA claim. Complainant's formal complaint included an EPA claim; however, the Agency accepted, investigated, and analyzed it as a Title VII claim. Despite being instructed to do so in the Agency's December 22, 2011 letter, the record contains no evidence that Complainant disputed the Agency's definition of the claim in writing within seven calendar days of receiving the letter. Moreover, although Complainant had the opportunity on appeal to raise her EPA claim with the Commission, she chose not to do so. We emphasize that "[a] request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, VII.A (Nov. 9, 1999). As Complainant did not raise this issue on appeal, we decline to address this for the first time on reconsideration.
Second, Complainant failed to show that the appellate decision clearly erred in finding no sex discrimination under Title VII. Although Complainant believes that management's testimony itself is indicative of discrimination, we find no evidence in the record that management's actions were motivated by her sex. As noted in the appellate decision, management articulated legitimate, nondiscriminatory reasons for its actions. We find that Complainant, in her request for reconsideration, has not shown that those reasons were a pretext for sex discrimination.
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. The decision in EEOC Appeal No. 0120122824 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
___6/19/13_______________
Date
2
0520130223
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130223