01983380
12-28-1999
Patricia A. Bernal, Complainant, v. Dan Glickman, Secretary, Department of Agriculture, (Farm Service Agency), Agency.
Patricia A. Bernal, )
Complainant, )
) Appeal No. 01983380
v. ) Agency No. 940812
)
Dan Glickman, )
Secretary, )
Department of Agriculture, )
(Farm Service Agency), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of national origin (Hispanic), in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges she was discriminated against when she was not
considered for the advertised position of Budget Officer, GS-560-12.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as GS-12 Management Analyst, at the agency's Farm Service Agency in Kansas
City, Missouri. The record establishes that pursuant to the agency's
Merit Promotion Plan (MPP), employees who are on advanced extended leave
may be automatically considered for vacancies which occur during their
period of leave by completing an Application for Advertised Vacancy,
Part II (AAV). The record reflects that complainant was on approved
extended leave from April 27, 1994 through June 1, 1994, and she had
completed an AAV, indicating her desire to be automatically considered
for vacancies occurring during her period of extended advanced leave.
The closing date for the position in question was June 2, 1994, and
on June 1, 1994, complainant called her second line supervisor (SLS)
and informed him that she was ill and would be out of the office for a
few additional days on emergency sick leave. However, complainant did
not tell the SLS that she had previously submitted the AAV and wished
to be considered for the Budget Officer position, nor did she contact
the Personnel Department to request that her application be considered
automatically pursuant to her AAV despite the fact that her period of
approved extended leave had expired. On June 7, 1994, complainant's
request that she be considered for the Budget Officer position was
denied. She subsequently asked the facility's Acting Director to have
her automatic consideration extended retroactively to June 6, 1994,
but that request was denied citing the facility's MPP. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint on August 10, 1994. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD concluded that complainant failed to establish a prima facie case
of national origin discrimination because she presented no evidence that
similarly situated individuals not in her protected class were treated
differently under similar circumstances. The FAD further found that even
assuming complainant established a prima facie case of discrimination,
the agency articulated a legitimate, nondiscriminatory reason for
its actions, namely, reference to its MPP, which stated that while
employees on �extended leave� covering the entire 10-day posting period
of a position must submit an AAV to be considered while on leave status,
employees on �emergency leave� do not qualify for automatic consideration
and must have their supervisors submit the AAV on their behalf. The FAD
found that as complainant was on a combination of extended and emergency
leave during the 10-day posting period for the position in question, she
was required to have her supervisor complete and forward an AAV once she
went on emergency leave from June 1, 1994 and thereafter, to assure that
she would be considered for the position at issue. As the complainant
did not inform the SLS or the Personnel Division of her interest in the
position in question at the time her emergency leave was approved, the
SLS was not required to file an AAV on complainant's behalf. The FAD
found that there was no discrimination against the complainant due to
her national origin. On appeal, complainant contends that the agency
failed to consider a number of her arguments. The agency requests that
we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), the Commission agrees with the agency that
complainant failed to establish a prima facie case of national origin
discrimination because she failed to demonstrate that similarly situated
employees not in her protected class were treated differently under
similar circumstances, or that there was other evidence in the record,
which, if unrebutted, would lead to an inference of discrimination.
In reaching this conclusion, we note that there is no evidence that
the SLS completed and filed an AAV on behalf of any employee who was on
emergency leave without a request or communication of interest initiated
by the employee. Therefore, after a careful review of the record,
and arguments and evidence not specifically addressed in this decision,
we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 28, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant 1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.