Lisa S. Smith, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionDec 28, 2005
01a54357_r (E.E.O.C. Dec. 28, 2005)

01a54357_r

12-28-2005

Lisa S. Smith, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.


Lisa S. Smith v. Department of the Interior

01A54357

December 28, 2005

.

Lisa S. Smith,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

Agency.

Appeal No. 01A54357

Agency No. WGS-04-008

DECISION

Complainant appeals to the Commission from the agency's April 15, 2005

decision finding no discrimination. Complainant alleged that she was

subject to discrimination on the basis of sex (female) when on January

18, 2004, her term appointment ended as a result of her position not

being converted to a career conditional appointment.

We find that the agency has articulated a legitimate, nondiscriminatory

reason for its actions. The record shows that complainant's term

appointment ended in January 2004. Complainant does not challenge that

her term appointment was due to end for non-discriminatory reasons

(budgetary). Complainant appears to argue that the agency should

have found her a position when her conditional appointment ended.

Complainant has not pointed to any rule or policy that requires the

agency to place her in a position when her career conditional appointment

ended. The agency asserts that complainant's appointment ended and

there was no position for complainant. Although complainant states

that other people whose appointments ended were somehow retained by the

agency, we agree with the agency that she has not named any similarly

situated individuals. For instance, complainant admits that at least

one person was hired for a position for which complainant did not apply.

Complainant also admits that other persons she named were students who

were treated under different rules (one of the students is female).

The Commission finds that complainant has failed to show that the

agency's reason are pretext for discrimination. Furthermore, complainant

has failed to show, by a preponderance of the evidence, that she was

discriminated against on the basis of sex. There is simply no indication

that the agency's failure to retain complainant was somehow motivated

by sex discrimination.

The agency's decision finding no discrimination 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 28, 2005

__________________

Date