0120071806
03-19-2009
Maria D. Lopez, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Maria D. Lopez,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120071806
Agency No. RD-2003-01577
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. Complainant alleged that she was
subjected to discrimination on the bases of national origin (Hispanic),
race (Hispanic) and sex (female) when, on March 17, 2003, complainant was
denied a career ladder promotion in the position of Community Development
Technician, GS-1101-07.
We find that the agency articulated a legitimate, nondiscriminatory reason
for the not promoting complainant. The Responsible Management Official
(RMO1), complainant's supervisor, stated that she signed the SF-52,
Request for Personnel Action recommending complainant's promotion, but
"decided to let the committee [Rural Development Promotion Committee]
decide whether or not to approve it." When the Committee requested
RMO1's opinion of complainant's qualifications, RMO1 said in a letter
that she didn't think complainant was ready. RMO1 claimed that this
comment was based upon her understanding of the Grade 7 responsibilities
and that complainant "routinely" missed mandated deadlines (on RESPA's
and Mortgage Loan Commitments) with no acceptable excuse. In addition,
RMO1 asserted that complainant was not as "productive" as she believed
a GS-7 was expected to be.
RMO1 stated that she met with the Program Outreach Coordinator (POC),
complainant's second line supervisor (Responsible Management Official 2
(RMO2)), and complainant in March 2003, wherein they discussed the POC's
report and any recommendations regarding complainant. RMO1 asserted
that they devised a training plan based upon the recommendations and
as complainant progressed through the plan, her production got better
and her skill level increased "substantially." RMO1 recalled that she
"wholeheartedly recommended" complainant for a promotion, which was
granted on June 19, 2003.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for the promotion
decision. Complainant failed to show, by a preponderance of the evidence,
that she was subjected to discrimination on the bases of national origin,
sex or race.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 19, 2009
__________________
Date
2
0120071806
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013