Mary C. Landry, Complainant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionMar 2, 2000
05a00058 (E.E.O.C. Mar. 2, 2000)

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.