0520120231
05-30-2012
Jolee L. Al-Villar, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Jolee L. Al-Villar,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520120231
Appeal No. 0120112523
Agency No. 8Y1M08008
DENIAL
Complainant timely requested reconsideration of the decision in Jolee L. Al-Villar v. Department of the Air Force, EEOC Appeal No. 0120112523 (Nov. 30, 2011). 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).
BACKGROUND
Complainant worked as an Engineering Technician, GS-0802-11, at Kirtland Air Force Base in New Mexico. She felt that she was not getting paid enough for the work she was doing, due to her sex.
To resolve this matter, the parties entered into a settlement agreement, which provided, in relevant part, that an Air Force auditor would conduct a "professional, fair and impartial" desk audit of Complainant's position.
The Agency conducted the desk audit and found that Complainant was properly classified as an Engineering Technician, GS-0802-11. In his evaluation, the auditor noted that Complainant had requested that he compare her assignments to the work performed by other employees at her work facility. The auditor declined to do so, stating that he was obligated by law to classify positions based on Complainant's current assigned duties, responsibilities, and qualifications requirements, and the standards published by the Office of Personnel Management (OPM). Since comparing standards, not other positions, is the intended and exclusive method for classifying positions, the auditor was prohibited from considering the classification of other positions as a basis for deciding the classification of Complainant's position.
Complainant maintained that the Agency breached the settlement agreement by failing to conduct a "professional, fair and impartial" desk audit of her position. She alleged that the outcome of the audit was predetermined, when the auditor chose to rely on an "illegal and fraudulent" Descriptive Core document, instead of using the GS-0802-12 Civil Engineering Technician Position Description core document.
She also believed that the documents produced during the audit did not "accurately" describe her official duties or what she accomplished, essentially maintaining that the auditor failed to consider whether she had unique capabilities and experiences that could have a grade-enhancing impact on the classification of her position.
For support, she highlighted the Introduction to OPM's Position Classification Standards, which articulates a concept known as "impact of the person on the job." This concept holds:
[T]he unique capabilities, experience, or knowledge a particular employee brings to the job can also have an effect on the work performed and therefore on the classification of the position. . . . [T]he relationship of the employee to the position can be recognized when the performance of the incumbent broadens the nature or scope and effect of the work being performed . . . . Such changes affect the difficulty of work or the responsibility and authority given the employee and can be recognized in the position classification decision.
Since the individual impact of an employee has changed the position, the official position description should reflect this change. By failing to apply this concept, the auditor did not conduct a "professional, fair and impartial" desk audit of her position, according to Complainant.
In response, the Agency maintained that the desk auditor properly conducted the audit, according to the relevant regulations and procedures. For legal support, the Agency cited OPM Decision No. GS-1802-09-04 (Oct. 31, 2002), in which OPM held: "By law, we must classify positions solely by comparing their current duties and responsibilities to OPM standards and guidelines (5 U.S.C. 5106, 5107, and 5112). Since comparison to standards is the exclusive method for classifying positions, we cannot compare the appellant's position to others as a basis for deciding his appeal . . . ."
The Agency also maintained that Complainant did not sufficiently demonstrate that the Agency inaccurately described her "accomplishments."
The previous decision found insufficient evidence to establish that the desk audit should have been conducted using a GS-0802-12 civil engineering position core document. The previous decision also found that Complainant failed to establish that the desk audit was inaccurate or conducted in a biased manner. Therefore, the previous decision affirmed the Agency's decision, finding no breach of the settlement agreement.
CONTENTIONS ON RECONSIDERATION
On request for reconsideration, Complainant reiterates her argument that the desk audit was "bogus, fraudulent and predetermined." She rejects the findings of the previous decision and declares her intention to challenge the previous decision in U.S. District Court.
ANALYSIS AND FINDINGS
We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17. Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Here, Complainant's request for reconsideration, for the most part, simply sets forth her disagreement with the previous decision and notes her intention to pursue this matter in U.S. District Court.
After reviewing 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. 0120112523 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
____5/30/12______________
Date
2
05-2012-0231
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120231