01a50254
12-29-2005
Jean L.S. Parrish, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Jean L.S. Parrish,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A50254
Agency No. JH-01-006
Hearing No. 230-2002-04029X
DECISION
On October 5, 2004, complainant filed an appeal from the agency's
September 7, 2004 final order 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. and Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a).
Complainant alleged that the agency discriminated against her on the
bases of national origin (Native American), disability (stress induced
asthma and stress related conditions), and reprisal for prior protected
EEO when, on March 27, 2001, she learned that she had not been selected
for a Supervisory Property Disposal Specialist position, GS-1104-14,
under Vacancy Announcement DRMS-01-835.
The matter was investigated. Following the investigation, complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
conducted a hearing on the matter and issued her decision finding no
discrimination. The AJ found that the agency articulated legitimate,
nondiscriminatory reason for its action, namely, they selected the
two best candidates for the position based on their significant
managerial and field experience. The AJ then turned to complainant
to establish that the agency's reason was pretext for discrimination.
The AJ noted that the essence of complainant's argument was that the AJ
should substitute her judgment as to complainant's qualifications for
the position. The AJ determined that complainant's qualifications were
not observably superior to those of the selectees. Therefore, the AJ
concluded that complainant failed to establish that the agency's reason
was pretext for discrimination. As such, the AJ found that complainant
did not show that the agency's action constituted unlawful discrimination
and/or retaliation.
The agency implemented the AJ's findings and conclusions. Complainant
appealed arguing that she should have been scored based on her own
calculations as one of the two highest applicants. Further, complainant
asserted that management officials conspired to ensure that complainant
was not selected for the position. Complainant claimed that the AJ
erred on several fronts and requests that the Commission overturn the
AJ's findings and rule in complainant's favor.
For the purposes of analysis, we assume complainant is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1). After a review of the record
in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission
to affirm the final agency order because the Administrative Judge's
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.
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
December 29, 2005
__________________
Date
3
01A50254
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036