0120101513
04-27-2012
Kathleen M. Martin, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Kathleen M. Martin,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120101513
Agency No. HS-08-FEMA-010740
DECISION
Complainant filed an appeal with this Commission concerning her complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as a Deployment Specialist, C-2, at the Agency's Deployment Operations Branch in Mt. Weather, Virginia. Report of Investigation (ROI), at 1. Complainant sought counseling and subsequently filed a formal complaint.
Complainant alleged discrimination on the bases of sex (female) and in reprisal for prior EEO activity when, on November 28, 2007, Complainant learned management did not select her for the position of Cadre-On-Call Response Employee (CORE) Deployment Specialist. 1
At the conclusion of the investigation, Complainant received a copy of the investigative report. Additionally, the Agency informed Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency. More than thirty calendar days elapsed with Complainant failing to either request an EEOC hearing or a final decision from the Agency. Therefore, the Agency requested that a final decision be issued on the merits of the complaint based on the current record.
On February 16, 2010, the Agency issued its decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Thereafter, Complainant filed the instant appeal.
On appeal, Complainant contended that it was questionable as to whether all of the evidence that she submitted to substantiate her claim along with supporting affidavits was provided by the Agency's Equal Employment Office; and if so, whether it was reviewed in its entirety. Complainant argued that she submitted documentation, which demonstrated that there were many false and contradictory statements made in the affidavits of the Section Chief for Disaster Operations Cadre Management Section (Section Chief) and the Program Specialist, also the Team Leader in the Disaster Branch (Team Leader).
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, � VI.A. November 9, 1999) (explaining that de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and ... issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
We find that the Agency's investigation was adequate. We also find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant claims that she submitted her resume and Knowledge, Skill, and Abilities (KSAs) to the Team Leader in February 2007. The Section Chief stated that the selectee was brought in at the GS-9 level via name request and without competition. The Section Chief said that the request for that action was submitted in March 2007. The Section Chief claimed that the selectee was not a FEMA employee and he had no prior automatic deployment data base (ADD) experience, but that he was brought in at the GS-9, two year CORE appointment and that competition was not required. The Section Chief asserted that the job that the selectee was hired for was not advertised. The Section Chief mentioned that there was more than one vacancy.
The Section Chief stated that Complainant's SF-52 and resume were sent to her for consideration for the position in question. The Section Chief said that she submitted a recruit action for Complainant to be converted from a DAE (GS-7) to a two-year CORE at a grade 9 in April 2007. Another personnel action for another employee to be placed in a second grade 9 two year CORE position was also submitted at the same time. The Section Chief said that the Staffing Assistant was advised by Human Resources Specialist A that the positions had to be competed because of the promotion potential for both. Human Resources Specialist A informed the Staffing Assistant that since both individuals were grade 7 they could not be placed in the vacant positions solely based on a name request. The Section Chief said that, as with all staffing positions, the decision to convert Complainant (from DAE to a two-year CORE) was based on the recommendation of the Team Leader at that time. The Section Chief said that they attempted to not only convert Complainant, but to upgrade her salary.
The Section Chief said that in May 2007, the personnel action to compete the above two positions was processed by the Staffing Assistant. Shortly after the paperwork was submitted to Human Resources, the Staffing Assistant was advised that back-fills were not allowed to fill the vacant CORE positions because as these are vacated, the positions no longer existed.
The Section Chief said that in July 2007, she met with the Supervisor of Human Resources and Human Resources Specialist B to discuss the vacant positions and the confusion surrounding the conversions since they were not advised that these positions would be lost when vacated. The Supervisor of Human Resources and Human Resources B could not provide her with any other positions to replace those lost (a total of five).
It appears that the Section Chief may have signed off on the name request action for the selectee before she knew about the requirement of the need to compete for the two-year CORE Deployment Specialist position from the Human Resources Specialists. The selectee's selection did not have anything to do with Complainant's nonselection inasmuch as it was not a matter of comparing the selectee to Complainant. The Section Chief, even if possibly mistaken, believed that Complainant simply could not be converted to a two-year CORE Deployment Specialist position because Complainant was in a DAE status at the time of the conversions. The Section Chief stated in her affidavit, "If we could have put [Complainant] in a GS-9 position without competition, we would have." We find that there was, in the Section Chief's non-discriminatory, good faith belief, no place for Complainant because of her interpretation of the Human Resources rules.
The Commission finds that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the CORE Deployment Specialist position. Additionally, the Commission finds that Complainant has failed to show by a preponderance of the evidence that she was subjected to discrimination on the bases of sex or reprisal.
CONCLUSION
The Agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (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
April 27, 2012
__________________
Date
1 In a statement dated August 4, 2008, Complainant withdrew the two claims regarding the Human Resources Assistant positions, which were accepted for investigation. ROI, Exhibit F-6 at 6A. As such, those additional issues will not be addressed in the instant decision.
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0120101513
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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