0120091569
06-24-2010
Mary Hughes Holmes, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (Minerals Management Service), Agency.
Mary Hughes Holmes,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(Minerals Management Service),
Agency.
Appeal No. 0120091569
Agency No. MMS-2007-0526
DECISION
Complainant filed an appeal from the Agency's final decision dated
January 14, 2009, concerning Complainant's complaint alleging employment
discrimination. 29 C.F.R. �1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's final decision.
BACKGROUND
In her complaint, dated November 28, 2007, Complainant, a Land Law
Examiner, GS-11, alleged discrimination based on race (Black/African
American) and age (over 40) when on June 19, 2007, she discovered that she
was not selected for the Land Law Examiner, GS-12, position advertised
under Vacancy Announcement Number S-07-66. Report of Investigation
(ROI), at Exhibit (Ex. 1). After completion of the investigation of
the complaint, Complainant requested a final agency decision without a
hearing. ROI, at Ex. 20. The Agency then issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action,
which complainant failed to rebut.
ANALYSIS AND FINDINGS
After a review of the record, the Commission, assuming arguendo that
Complainant had established a prima facie case of discrimination,
finds that the Agency has articulated legitimate, nondiscriminatory
reasons for the nonselection at issue. The Selecting Official (SO)
stated that the position at issue was a new position that was to serve
under his immediate supervision as an assistant to him to help run and
direct the unit when he was not around or if he was otherwise absent.
ROI, at Ex. 7, at 83-86. He also stated that the Human Relations office
issued the vacancy announcement, received the applications, prepared
a certificate of eligible candidates, and submitted that certificate,
along with the application, to him. Id. The SO indicated that there
were three candidates and since he was the first-line supervisor for
all three candidates and knew their capabilities, he decided not to
interview them. Id. The SO further stated that his selection decision
was based on the candidates' level of experience, work ethic, performance
output and ratings, and their ability to be creative and innovative in
their approaches to the job. Id.
The SO indicated that he did not select Complainant because her
performance rating for last year was "Minimally Successful" and was put on
a performance improvement plan, and, also, her poor performance had been
a historical problem for her during past 11 years under his supervision.
Id. at 87-89; ROI, at Ex. 16-17. The SO further indicated that he
selected a selectee for the position since she was an exceptional,
superior performer and very innovative. ROI, at Ex. 7. The record
indicates that the selectee received "Exceptional Rating" for the period
of October 1, 2005, to September 30, 2006. Id., at Ex. 15.
After a review of the record, we find that Complainant failed to show
that her qualifications for the position were plainly superior to the
selectee's qualifications or that the Agency's action was motivated
by discrimination. See Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995).
Accordingly, 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
6/24/10
__________________
Date
2
0120091569
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013