01A24372_r
08-22-2003
Sandra J. Blake, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Sandra J. Blake v. Department of the Treasury
01A24372
August 22, 2003
.
Sandra J. Blake,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A24372
Agency No. 02-1168
DECISION
On May 8, 2002, complainant filed a formal EEO complaint wherein she
claimed that she was discriminated against on the bases of her sex
(female), age (64), and reprisal. The agency defined the alleged
incidents as being: (1) in January 2002, complainant was requested to
provide a written justification to support her request for a promotion
to the GS-14 grade level; (2) in January 2002, complainant was told not
to read her e-mails and not to attend meetings in order to accomplish
unanticipated work and to meet the deadlines; and (3) in January 2002,
complainant's supervisor did not assist the complainant with work
assignments (i.e., by not distributing complainant's work to other
employees with less responsibility).
By agency decision dated July 16, 2002, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds of failure to
state a claim. With regard to claim (1), the agency determined that
complainant had not applied for the positions at issue. According to
the agency, complainant failed to establish the extreme circumstances
necessary to prove that the agency discouraged her from applying or
that the application process was secretive. The agency determined that
complainant failed to show how she was harmed when she did not apply
for promotion to the positions advertised at the GS-14 grade level,
and therefore could not be selected. The agency further stated that
complainant was not eligible for a career ladder promotion and therefore,
complainant was not harmed when her supervisor did not promote her after
she submitted written justification on April 5, 2000. As for claims
(2) and (3), the agency determined that complainant failed to show she
suffered harm. The agency also determined that the basis of reprisal
is not appropriate in this matter in light of the fact that complainant
has no prior involvement in the EEO process.
On appeal, complainant argues that the agency did not interpret her
complaint correctly. Complainant claims that her complaint clearly
alleges a violation of the Equal Pay Act. Complainant notes that she
stated in the complaint that two permanent non-supervisory male Human
Resources Consultants, much younger than her, are both at the GS-14
grade level, whereas the four non-supervisory females are at the GS-13
grade level. According to complainant, she also stated in the complaint
that all of the Human Resources Consultants have the same nationwide scope
of work, the same supervisory controls, the same level of difficulty of
work and responsibility for a human resources specialty. Complainant
states that her complaint alleges two discrete instances of failure to
promote based on sex and age. Complainant states that one claim is that
she was discriminated against in the merit selection promotion process
when younger, male employees were preselected for two GS-14 vacancies.
Complainant states that her other claim is that she was discriminated
against when her supervisor refused to promote her by utilizing the
same procedure that had been utilized to promote the similarly situated
younger, male colleagues.
With regard to the agency's dismissal of the complaint on the grounds of
failure to state a claim, complainant argues that the agency improperly
addressed the merits of the complaint and that the dismissal is based on
an incorrect understanding and application of the futility doctrine in
failure to promote cases. Complainant maintains that the agency made
a merits determination when it decided that extreme circumstances do
not exist to justify her failure to apply for promotion. With regard
to such circumstances, complainant states that the timing of the
position announcements almost perfectly coincided with the end of the
temporary assignments for the eventual selectees. Complainant notes
that the vacancy announcement was rescinded when it was determined that
an eventual selectee was not eligible and subsequently reannounced
once he became eligible. Complainant claims that everyone in the
Taxpayer Advocate Service understood that the two individuals who had
been serving temporary assignments were preselected for the announced
positions. With respect to the agency's determination that complainant
was not eligible for a promotion in her current position, complainant
claims that she never requested a promotion in her current position.
According to complainant, she was requesting that the Director of Human
Resources promote her by following the same process as he had with the two
male GS-14s. Complainant states that under that process, the Taxpayer
Advocate Service would issue a competitive vacancy announcement at the
GS-14 level for which she could apply and it would be understood that
she would be selected for the position.
In response, the agency asserts that claims of preselection are not
discriminatory per se and they do not obviate the need for applying for
the position. The agency states that complainant raises no question
of manipulation of the selection process. With regard to complainant's
claim that she raised an Equal Pay Act claim in her complaint, the agency
asserts that complainant did not raise an Equal Pay Act claim until the
instant appeal. The agency maintains that complainant has failed to
state a claim given that she did not apply for the relevant positions.
The agency further asserts that complainant suffered no harm due to her
supervisor's decision not to reapportion her work assignments.
Initially, we observe that the agency's definition of the issues
is not complete. It is evident from the complaint that complainant
claimed that the agency is violating the Equal Pay Act by promoting
male Human Resources Consultants to the GS-14 grade level and keeping
females at the GS-13 grade level despite the fact that all of the Human
Resources Consultants perform essentially the same work and have the
same responsibilities.
The Commission finds that the instant complaint was properly dismissed
pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds of failure to
state a claim. We find that complainant's failure to apply for the Human
Resources Consultant, GS-14 positions precludes her in this matter from
establishing that she suffered harm to a term, condition, or privilege
of her employment. Complainant claims that it would have been futile
for her to apply under the two relevant vacancy announcements because it
was widely known that two male candidates had been preselected. We find
that even if preselection was anticipated, this does not constitute a
sufficiently extreme circumstance to obviate complainant's obligation
to apply for the GS-14 positions. In light of complainant's failure to
apply for the GS-14 positions, we further find that she has not suffered
sufficient harm to state a claim under the Equal Pay Act. Complainant
can not convert a nons-selection claim into an Equal Pay Act claim simply
in order to render her aggrieved. Ultimately, the instant claim concerns
her non-selection for a position for which she did not apply.
We note on appeal that complainant states that she claimed that her
supervisor refused to promote her by utilizing the same procedure that he
had with regard to her male colleagues. However, a fair reading of the
complaint reveals that the agency properly framed the issue in this claim
as being that complainant was required to prepare a justification for
her promotion to a GS-14 position. We find that merely being required to
prepare a justification does not demonstrate harm to a term, condition,
or privilege of complainant's employment. As for the instruction to
complainant not to look at her e-mails or attend meetings so she could
perform her work more efficiently, we find that complainant failed to
establish that she suffered harm to a term, condition, or privilege
of her employment as a result of the instruction. We also find that
complainant has not stated a claim with regard to her supervisor's lack
of assistance concerning her work assignments. We find that complainant
has not demonstrated harm to a term, condition, or privilege of her
employment as a result of her supervisor's lack of assistance.
Accordingly, the agency's dismissal of the complaint on the grounds of
failure to state a claim was proper and 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
August 22, 2003
__________________
Date