05980351
11-09-2000
Marie E. Parker, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Marie E. Parker v. Department of Commerce
05980351
November 9, 2000
.
Marie E. Parker,
Complainant,
v.
William M. Daley,
Secretary,
Department of Commerce,
Agency.
Request No. 05980351
Appeal No. 01955256
Agency No. 94-55-0391
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Marie
E. Parker v. Department of Commerce, EEOC Appeal No. 01955256 (January
5, 1998).<1> EEOC Regulations provide that the Commission may, in
its discretion, 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).
In her original complaint, complainant alleged that she had been
discriminated against on the bases of sex (female), age (52), and
physical disability (multiple sclerosis), when on May 29, 1994, she
was involuntarily reassigned from her supervisory position as Director,
Office of Accounting, GS-15, to a newly created nonsupervisory Senior
Policy Analyst position, GS-15, in the Office of Policy. In her
Request to Reconsider, complainant contends that the Commission failed
to properly consider and weigh facts in the record that demonstrate
that the agency's proffered reasons for reassigning complainant are a
pretext to mask discrimination based on her sex and age. These proffered
reasons were that complainant was being reassigned: (1) to increase
accounting expertise, particularly in the areas of anti-dumping and
countervailing duty, because the role of the Office of Policy would
take on increasing importance in the current administration; and (2)
the official responsible for the reassignment (RMO) wanted to maximize
complainant's strengths by utilizing her background and experience in a
new, nonsupervisory position that de-emphasized her perceived weakness
in management and supervisory skills.
Complainant asserts that she had not been advised of perceived weaknesses
in her management of the Office of Accounting or in her supervisory skills
prior to agency affidavits submitted in the context of her EEO complaint
investigation, and notes that she had received an outstanding rating for
the 1993 rating year. Because the agency failed to notify her of any
perceived weaknesses prior to her re-assignment and failed to provide
her with an opportunity to address these weaknesses, complainant contends
that these reasons for reassigning her are a pretext for discrimination.
She further notes, as evidence of pretext, that her former supervisors
all provided negative evaluations of her supervisory skills to the RMO,
who was the Assistant Secretary for Import Administration, during the
earliest days of the RMO's appointment. In addition, the job to which
she was re-assigned was in fact a dead-end job that provided her with no
opportunity to utilize her financial/accounting expertise, that lacked
duties commensurate with her grade level, that resulted in her being
excluded from meetings, and where she has not been asked to develop
any policy. Finally, complainant points out, as evidence of pretext,
that she was replaced in her former position by a younger male employee
and that two similarly situated male employees re-assigned with her were
only temporarily re-assigned to the Office of Policy.
We note, however, that in complainant's performance rating for October
1, 1992 through September 30, 1993, before the RMO was appointed, her
supervisor (S-1) noted her failure to delegate additional managerial and
review responsibility for the work product down to her program managers.
For this reason, S-1 did not rate the element of Administration and
Supervision outstanding. He had also briefed the RMO on two grievances
filed by complainant's subordinates. Another former supervisor (S-2)
told the RMO that complainant had a �difficult� relationship with
her staff. Hence, we find that the RMO had legitimate reasons for
perceiving complainant to have questionable management skills.
As to complainant's assertion that her being placed in a �dead-end job�
was evidence of pretext, we agree with the agency that the overall
rationale for creating the position was legitimate and credible.
While according to complainant, the Director of the Office of Policy
did not have a clear idea of what she was to do, we find it legitimate
that the RMO believed that the Director, together with complainant,
would be responsible for formulating her day-to-day activities. Thus,
we do not find it credible that the RMO thought of the position as a
dead-end job at the time she created it. Finally, we note that employers
generally have broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by a reviewing court or
administrative tribunal absent evidence of unlawful motivation, which we
do not find here. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259 (1981).
After a review of the complainant's request for reconsideration,
the previous decision, and the entire record, the Commission finds,
therefore, 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. 01955256 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
November 9, 2000
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.