0520070841
09-20-2007
Mary H. Holmes, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Mary H. Holmes,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Request No. 0520070841
Appeal No. 0120071495
Agency No. LMS05001
DENIAL
Complainant timely requested reconsideration of the decision in Mary
H. Holmes v. Department of the Interior, EEOC Appeal No. 0120071495
(July 12, 2007). 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).
The record indicates that at the time of events giving rise to this
complaint, complainant worked as a Land Law Examiner at the agency's
Elmwood Towers facility in New Orleans, LA. On October 13, 2004,
complainant filed an EEO complaint claiming that the agency discriminated
against her on the bases of race (African-American) and in reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when on June 18, 2004, the agency did not select her for
the position of Program Analyst, GS-12. The EEOC Administrative Judge
(AJ) issued a bench decision finding no discrimination or retaliation
as alleged. In his decision, the AJ found that the agency articulated
legitimate, nondiscriminatory reasons for not selecting complainant.
Specifically, the AJ found that both complainant and the selectee
(SE) were qualified and capable for the position. The AJ also noted
that the selecting officer employed his own criteria, but found the
selecting officer did not abuse them in any way and that the record did
not show that race or complainant's prior EEO activity was the reason
for complainant's non-selection. The AJ then concluded that complainant
failed to show by a preponderance of the evidence that the reasons given
were a pretext for discrimination. Thereafter, the agency issued a
final order, adopting the AJ's decision.
Pursuant to complainant's appeal, the Commission issued a decision and
concurred with the AJ's finding that the agency articulated legitimate,
nondiscriminatory reasons for its selection decision. The Commission
noted that complainant submitted an extensive amount of documentation
in support of her claim. While the Commission found the documents
submitted by complainant demonstrated her abilities, we also found
that the documentation did not sufficiently prove that complainant's
qualifications were so far superior to SE's such that an unlawful
discriminatory intent could be inferred by SE's selection. Therefore,
the Commission found that complainant failed to prove by a preponderance
of the evidence that the agency's articulated reasons for selecting the
SE for the position at issue were pretextual in nature.
In her request for reconsideration, complainant alleged that the
Commission made an erroneous interpretation of material fact, as she
had more experience and education than the SE. As in her appeal to
the Commission, complainant alleged that she possessed the "intangible"
factors such as ability to adapt which the agency claimed were critical
for the position at issue. However, after a review of the record and the
Commission's decision, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The record indicates that
the selecting official stated that based on the qualifications of the
applicants and his work experiences with both complainant and the SE,
the SE would be the best fit for the position at issue and would satisfy
the necessary criteria required. As noted in our prior decision, while
the evidence establishes complainant's qualifications, we find that there
is no evidence that the agency discriminated against complainant due to
her race or in retaliation for prior EEO activity when the SE was chosen
for the position at issue.
As such, 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. 0120071495 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
__9/20/07___________
at
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0520070841
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070841