Tamilin Ferrier, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionDec 29, 2003
01A32480_r (E.E.O.C. Dec. 29, 2003)

01A32480_r

12-29-2003

Tamilin Ferrier, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.


Tamilin Ferrier v. Department of the Interior

01A32480

December 29, 2003

.

Tamilin Ferrier,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

Agency.

Appeal No. 01A32480

Agency No. FNP-2003-004

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated February 14, 2003, dismissing her complaint of unlawful

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. The agency

defined complainant's complaint as alleging that she was subjected to

discrimination on the basis of sex (female) when:

Complainant was not selected for the position of Supervisory Park

Ranger (Chief Ranger), GS-0025-14, which was advertised under vacancy

announcement number GRCA-2001-67, and re-advertised under vacancy

announcement GRCA-2001-82 at the GS 14 level, which was located at the

Grand Canyon National Park.

Complainant was not selected for the position of Supervisory Park Ranger,

GS-0025-13/14, which was advertised under vacancy announcement number

GRCA-2002-063, and located at the Grand Canyon National Park.

The agency dismissed issue (1) pursuant to the regulation set forth at 29

C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The agency

claimed that complainant became aware of her non-selection for vacancy

announcement numbers GRCA-2001-67 and GRCA-2001-82 on November 15, 2001.

The agency stated that complainant did not contact the EEO Office until

mid-July 2002, which was beyond the applicable limitations period.

With regard to issue (2), the agency dismissed this issue pursuant to

the regulation set forth at 29 C.F.R. � 1614.107(a)(1), for failure to

state a claim. The agency stated that the position of Supervisory Park

Ranger, GS-0025-13/14, was advertised under vacancy announcement number

GRCA-2002-63 on March 2, 2002. The agency stated that the vacancy

announcement did not indicate that an applicant who had previously

applied for this position need not re-apply. The agency acknowledged

that a selection for vacancy announcement number GRCA-2002-63 was made.

However, the agency claimed that since complainant failed to apply for

this position, she could not have been considered for the position.

Further, the agency claimed that vacancy announcement GRCA-2002-63 is

a separate and distinct action which required complainant to respond

because it was advertised at a different grade level.

On appeal, complainant stated that she applied for the position of

Chief Ranger, Vacancy Announcement No. GRCA-2001-82 in August 2001.

She notes that she had previously applied for this position under

Vacancy Announcement No. GRCA-2001-67. Complainant explained that in a

November 15, 2001 letter, the agency informed her that no selection had

been made for the Chief Ranger position. She claimed that the letter

advised her that if the agency decided to re-advertise the position,

it would notify her so that she could reapply. She stated that she

received no further official correspondence from the agency regarding the

Chief Ranger position. Complainant explained that on May 1, 2002, she

learned from an agency employee that the position had been re-announced.

She stated that on June 2, 2002, she learned that a White male had been

selected for the position. She stated that at this time she first

suspected discrimination and on July 12, 2002, attempted to initiate

EEO Counselor contact. Complainant noted that she is not an agency

employee and was wholly reliant upon the agency to notify her if the

position was re-advertised. Complainant stated that she had no reason

to suspect discrimination on November 15, 2001, as no selection had been

made at that time.

The record contains a copy of the November 15, 2001 letter notifying

complainant that the agency is delaying filling the Chief Ranger position.

The letter notified complainant that after the first of the calendar

year, another person will fill the position on a temporary detail.

Complainant was notified that consideration will be given on whether

to go forward on filling the position on a permanent basis. The letter

stated that if the position is readvertised she is invited to reapply.

The record contains a copy of the Vacancy Announcement for GRCA 2001-82

which advertised the Supervisory Park Ranger position at the GS 14 level.

The announcement contained a special note that �THIS IS A READVERTISEMENT

OF ANNOUNCEMENT GRCA 2001-67, APPLICANTS WHO PREVIOUSLY APPLIED DO NOT

NEED TO REAPPLY FOR CONSIDERATION.�

The record contains a copy of the Vacancy Announcement for GRCA 2002-63

which advertised the Supervisory Park Ranger position at the GS 13/14

level.

Upon review, we find that the agency properly dismissed complainant's

complaint. With regard to issue (1), although the agency dismissed this

issue for untimeliness we find that this issue is more appropriately

dismissed for failure to state a claim. The record reveals that in August

2001 complainant applied for the position of GS-14 Supervisory Park

Ranger, vacancy announcement GRCA-2001-82, originally advertised under

vacancy announcement GRCA-2001-67, and was informed in a November 15,

2001 letter, that at the time no selection was made on this position.

On appeal, complainant does not contest the agency's arguments that no

selection was made for the position advertised under announcement numbers

GRCA-2001-67 and GRCA-2001-82. Furthermore, complainant does not argue

that the agency decided not to make a selection because she applied for

the position. Because no selection was made for the position, we find

that complainant has failed to show that she was aggrieved in claim (1).

Similarly, we find that issue (2) was properly dismissed for failure

to state a claim. The record reveals that the agency re-announced

the Supervisory Park Ranger position on March 1, 2002, under vacancy

announcement GRCA-2002-063, as a GS-13/14. The record reveals that

complainant did not apply for this new position. The record contains

a copy of the Vacancy Announcement for GRCA 2002-63 which does not

indicate that applicants who previously applied for GRCA 2001-67 and/or

GRCA 2001-82 do not need to reapply for consideration. The Commission

has held that claims of non-selection fail to state a claim where the

complainant failed to apply for the position. A complainant is only

aggrieved in such claims where a complainant alleges that the agency

discouraged him from applying; or that the application process was

secretive. See Ozinga v. Department of Veterans Affairs, EEOC Request

No. 05910416 (May 31, 1991). Complainant does not claim that the agency

discriminatorily discouraged complainant from applying for GRCA-2002-63,

or that it discriminatorily kept her unaware of the position announced

under GRCA-2002-63. Further, we note that despite complainant's claim

that the agency failed to notify her of this new announcement, she

produces no evidence that the agency was under an obligation to notify

her of the position announcement.

Accordingly, the agency's decision to dismiss complainant's complaint

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

December 29, 2003

__________________

Date