05a00058
03-02-2000
Mary C. Landry, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Mary C. Landry v. Department of Energy
05A00058
March 2, 2000
Mary C. Landry, )
Complainant, )
) Request No. 05A00058
v. ) Appeal No. 01974710
) Agency No. 94 (77)SPRO
) Hearing No. 270-95-9035X
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On October 13, 1999, Mary C. Landry (complainant)/the Department of
Energy (agency) initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Mary C. Landry
v. Department of Energy, EEOC Appeal No. 01974710 (September 9, 1999).<1>
EEOC Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.405(b)). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Complainant's request is denied.
BACKGROUND
During the period in question, complainant was employed by the United
States Department of Energy. Complainant has claimed that she was
discriminated against based on her age, race, sex and color, when she was
not selected for two positions for which she applied. In regards to the
first position, Budget Analyst, the qualifications for this position,
according to the AJ's decision, were that applicant's must demonstrate
that they possessed one year of specialized experience at least equivalent
to the GS-7 grade level. However, the hearing transcript reflects that
one must demonstrate that they have at least one year experience at the
GS 7 level in accounting or budget work. Notwithstanding this
inconsistency, the record reflects that complainant does not meet either
of the criteria set forth above. It should be further noted, that
complainant admits she was not qualified for the position during the
hearing, on appeal and on request. Despite her being unqualified,
complainant challenges managements selection for the position claiming
that they discriminated against her because the one chosen for the
position was also unqualified. However, the record indicates that the
selected employee did in fact meet the requirements. It is undisputed in
the hearing record, that one may satisfy the requirements for the budget
analyst position if they possess either accounting or budget experience.
Therefore, this standard will be applied by the Commission in deciding
this request. In this case, the employee selected possessed one year of
accounting experience at the GS-9 level and one year at the GS-7 level.
Moreover, it is undisputed that six months of accounting experience was
gained at the GS-11 level. Thus, clearly making this employee qualified
for the position.
In regards to the second position, Logistics Management Specialist,
complainant was found to be qualified but, was not chosen for two reasons.
First, according to the selecting officials, she did not exhibit the
same drive and desire as the selectee and the selectee was chosen
as part of the upward mobility plan. Furthermore, complainant and
the selectee scored equally before the ranking panel. And it was the
selecting officials, who decided through the final interview process, that
complainant was less qualified because she did not exhibit the same drive
and desire as the selectee. In addition, the hearing transcript shows
that complainant has a history of poor interaction with her colleagues.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.405(b), in relevant part, states that the
party requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following two criteria:
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or the decision will have a substantial impact on
the policies, practices or operations of the agency. Concerning the
budget analyst position, on request, complainant argues that the AJ
applied the wrong law in determining that the selectee was qualified.
Complainant claims that one could only be qualified if they have one year
of specialized experience as a budget analyst position at the GS-7 level.
However, the record is undisputed, that other experience can be used
to meet the promotion criteria if it is closely related to the position
applied for. Here, the selectee had years of accounting experience at
a level commensurate with and greater than the GS-7 level, which the
agency considers to be closely related to budget analyst experience.
Therefore, the Commission finds that the selectee was in fact qualified
for the position and the complainant has failed to establish that a
clear error of law or material fact has occurred.
With regard to the logistics position, on request, complainant is
attempting to reargue her case by providing additional evidence of
her qualifications, as opposed to establishing that a clear error of
law or fact has occurred. The record reflects that both complainant
and selectee scored equally before the panel. Therefore, the final
interview is what determined whom was more qualified. Here, it was
subjectively determined that complainant was less qualified than selectee.
Furthermore, the record does not reflect that complainant established that
the interviewer's subjective findings were motivated by discrimination.
Therefore, the Commission finds that complainant has failed to establish
that a clear error of law or material fact has occurred. Thus, the
Commission finds no reason to disturb the previous decision.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds complainant's
request does not meet the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny appellant's request. The decision
of the Commission in EEOC Appeal No. 01974710 remains the Commission's
final decision. There is no further right of administrative appeal from
a decision of the Commission on a request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
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:
March 2, 2000
__________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.