01A24966_r
01-06-2003
Michelle Benedict, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Michelle Benedict v. Department of Defense (Defense Commissary Agency)
01A24966
January 6, 2003
.
Michelle Benedict,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A24966
Agency No. SAC98CA0476E
DECISION
Complainant appealed to this Commission from the agency's July 29,
2002 final decision finding no unlawful employment discrimination.
In her complaint, complainant alleged discrimination on the basis of
reprisal for prior EEO activity when on December 30, 1997, she was not
selected for a GS-1144-7/8 Assistant Grocery Manager position.<1>
After the agency investigated the accepted claim, complainant requested
a hearing with an EEOC Administrative Judge (AJ), identified as Hearing
No. 340-99-3147X. Prior to the hearing, however, complainant withdrew
her request. As a result, the agency issued its July 29, 2002 final
decision based on the Report of Investigation, and complainant appealed.
On appeal, complainant argues that she had extensive experience while on
a detail as an Assistant Grocery Manager position. She contends that
the selecting officials were switched and that she had more relevant
experience.
In its final decision, the agency noted that complainant's supervisor,
against whom she had filed prior EEO complaints and testified against in
a coworker's EEO hearing, was scheduled to make the Assistant Grocery
Manager selection. To avoid the possible impropriety of having the
supervisor make the selection, a senior manager made the selection
himself. The senior manager testified that he chose the selectee
because he had worked with the selectee before, and was confident of
his managerial abilities.
In the present case, complainant served a detail as an Assistant Grocery
Manager for a period in 1993. The selectee performed three different
details in the closely related position of Produce Manager, and was
working in that position at the time of his selection. Complainant has
failed to show that her qualifications were clearly superior to those
of the selectee, or otherwise prove discrimination by a preponderance
of the evidence.
CONCLUSION
Accordingly, the agency's final decision is AFFIRMED.
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
January 6, 2003
__________________
Date
1In her complaint, complainant also alleged harm from not being selected
for a Assistant Grocery Manager position in 1996, and for having her
collateral duties taken away. The Commission affirmed the agency's
dismissal of these issues in Benedict v. Department of Defense, EEOC
Appeal No. 01985566 (October 29, 1999). Therefore, the Commission will
address only the 1997 nonselection in the present decision.